What is Pre-Action and What Steps are Involved in Making a Claim
What is the Pre-Action Protocol when making a claim for compensation?
We are often asked by clients what happens at the start of case and what do we say to the defendant on their behalf.
Most cases follow a set process. Ordinarily we would listen to our clients and take notes on the details of the case (solicitors call this taking the clients instruction).
Once we have your instructions and authority to proceed we then; depending on the type of case, either write a lengthy letter of action, called a letter of claim, to the defendants directly, or in specific types of case such as Road Traffic Accidents or Accidents at Work we fill out a form online and submit this directly to the defendants insurers. This process is known as submitting the claim through the claims portal. Either way most cases follow a set of rules and time scale known as a “Protocol”.
There are different types of protocols for different types of cases. Some cases are submitted online, through an online Portal.
The defendants get a set amount of time to respond to the claim and either admit it or deny liability. Time varies depending on the type of case.
- Road Traffic Accidents, 21 days.
- Accidents at work, 6 weeks.
- Holiday illness claims, 6 months.
If the defendants deny, then they are supposed to disclose any documents they have in their possession which would support their defence. They very often don’t bother, which leads to further court action, known as a Pre-Action Application.
Obviously the more information that we can give to a potential defendant the more likely it is that they are going to respond within the time period. Often, however, for reasons known only to themselves, insurance companies choose to ignore the protocol period completely and either fail to respond at all or respond with a blanket denial which flies in the face of the facts of the case.
If the protocol period has elapsed and we either have or have not had a proper response from the insurance company, your case will be reassessed. Obviously if an admission of liability has been received then we would move on to try and assess the value of the claim. This usually involves obtaining a medical report and quantifying the financial losses that you have sustained, (e.g wage loss or property damage). If no admission has been received, then at that point we would begin gathering further evidence, such as witness statements, independent reports and any other document which we may need to establish liability in your favour.
At all times we would try to assume that your claim is going to end up at trial. The vast majority of cases don’t got to trial but we treat your case from day one as if it may end up in front of a judge.
Prior to the issue of full court proceedings we will usually disclose your medical report and make an offer to settle in an attempt to tempt the defendants into doing a deal. At that point we may make what is known as a Part 36 offer on your behalf. This is a formal offer, which, if we beat it at any subsequent trial we can show the judge we were reasonable and tried to settle the claim without bringing it to court. This will have cost consequences for the defendants.
In summary, each and every type of case has a different protocol which sets out the rules for how the claim shall be managed and the time scales for responses and replies. The more complex the claim, the more lengthy the protocol period and the more information that needs to be provided.
If you would like further more detailed information on the Pre-Action Protocol then click here.
If you would like to discuss a possible claim with one of our specialist solicitors then use the enquiry form below and we will contact you or call us on 0161 685 0070.