News

Wed, 20 Apr 2011

Pre Action Protocol Investigation Period

It is very often the case that a claimant solicitor acting under a conditional fee agreement will have to wait many months if not years to recover their costs in a case subsequently settled or is successful at trial. This is undoubtedly a motivating factor behind the number of applications for pre-action disclosure that the courts are required to deal with.

In most claimant personal injury practices, where the volume of cases are high, the costs recovered following pre-action disclosure applications can provide a good cash flow, even in cases that are unlikely to proceed, notwithstanding the integrity of some practices in jumping the gun to make such applications.

Paragraph 3.6 of the personal injury pre-action protocol states that:

‘The defendant should reply within 21 calendar days of the date of posting the letter identifying the insurer (if any) and, if necessary, identifying specifically any significant omissions on the letter of claim. If there has been no reply by the defendant or insurer within 21 days, the claimant will be entitled to issue proceedings’.

Furthermore, paragraph 3.7 states that:

‘The defendant(’s insurers) will have a maximum of three months from the date of acknowledgment of the claim to investigate. No later than the end of that period the defendant (insurer) shall reply, stating whether liability is denied and, if so, giving reasons for denial of liability including any alternative version of events relied upon’.

Paragraph 3.10 adds that ‘if the defendant denies liability, he should enclose with the letter of reply, documents in his possession which are material to the issues between the parties, and which would be likely to be order to be disclosed by the court.’

The logistics involved in obtaining documents to be disclosed, which will more often than not also be required before formulating a response, can often result in difficulty in meeting these deadlines.

It must be remembered that the pre-action protocol is a guide and not a rule. However, in the context of marine casualties, it is worth identifying at the outset, firstly, where the accident happened by reference to the location of the ship and secondly, the domicile of the member.

This is because paragraph 3.8 of the pre-action protocol provides that:

‘Where the accident occurred outside England and Wales and/or where the defendant is outside the jurisdiction, the time period of 21 days and 3 months should normally be extended up to 42 days and 6 months’.

The territorial waters of the UK have a 12 mile radius but more importantly the protocol only applies to England and Wales.

The provision of 3.8 is something that is very often overlooked.

In a case involving a crewman who was inured whilst on board a vessel north of Scotland, the claimant’s solicitor filed an application for pre-action disclosure after the 4 month period under paragraph 3.7 had expired. This was done despite the Club updating the claimant’s solicitor routinely on the progress of the investigation in to liability.

After establishing the accident locus and applying paragraph 3.8, we were able to force the claimant’s solicitor to withdraw the application. This has not been an isolated case and it would be interesting to know how often this simple issue has been overlooked but resulting in the Club/Member having to pay the claimant’s costs.