Personal injury lawyers must follow certain procedures before going to court. The guidelines are called the Personal Injury Pre-action Protocol (PI Protocol). The aim of the protocol is to encourage early and more meaningful exchange of information which in turn leads to cases settling without the need for going to court.
The aims of the PI Protocol are:
• more contact between both sides before going to contact.
• better and earlier exchange of information.
• better investigation by both sides before going to court.
• to make it possible for cases to settle fairly and early without going to court.
• so that cases can run according to the court’s timetable and efficiently, if going to court becomes necessary.
• to make it easy for injured victims to get medical or rehabilitation treatment early.
The PI Protocol covers car accident compensation claims, accidents at work and accidents in public places.
Procedure
The PI Protocol sets out procedures to be followed including the following:
a) Letter of Claim
The Letter of Claim is the first letter your solicitor will send to the other side. The idea is to state at the very early stage exactly what your case is, why you believe the other person is to blame and a brief description of the loss and damage that you have suffered, including property damage, for example, damage to your car.
The PI Protocol states that the other side must confirm receiving the Letter of Claim within 21 days and make a decision whether they accept responsibility for the accident or not within 3 months of the date of acknowledgment.
You should not take the case to court before the 3 months time period is up, unless your case is close to three years from the date of the accident.
b) Exchanging information
The PI Protocol encourages both sides to exchange as much information at an early stage as possible. The idea is that if each side sees most if not all the evidence involved, they can make an informed decision whether it is worth pursuing or resisting the case.
Further, once all the information is exchanged, it puts both sides in a better position to negotiate a settlement – each side will have an idea of the weaknesses and strengths in the other’s case.
For example, if you had an accident at work, your employer will have most of the information you would need to prove your claim.
If it was a scaffold accident, you would first need to prove that the accident took place. Your employer would need to supply a copy o the Accident Report Form which would show how the accident happened and may have a record of any action that was taken to make sure a similar accident does not happen again, such as repairing the scaffold. This information would be evidence to prove that your employer was at fault.
c) Preparing witness statements, getting information about your injuries and expenses
It is important all necessary information is gathered to support the claim.
Witnesses have to be identified and their statements prepared. If the statements are favourable to the case they will be exchanged early on in order to get the other side to accept responsibility for the accident.
If you spent money on things like prescription charges, travel, car recovery charges etc, receipts for these should be given to your injury lawyer as soon as possible
In order to calculate your compensation for pain and suffering, it is important to get a medical report showing the kind of injury that you sustained the kind of treatment you received and the effect it had on you.
Since the medical report is intended to be used in court, the medical expert must follow certain guidelines set out in the PI Protocol.
A lot of the time, injury lawyers use Medical Agencies to instruct medical experts.
The advantage of this is that you will not be faced with the accusation that the medical expert is one that your solicitors always use thus raising questions about the doctor’s impartiality.
d) Negotiating a settlement
The majority of personal injury cases settle before going to a hearing in front of a judge and a lot of them settle before going to court, in particular car accidents.
Due to the PI Protocol, you will normally know at an early stage whether a defended case is worth taking to court and the other side will know whether a case is worth fighting.
A way of negotiating which puts your opponent on guard is making what is known as Part 36 Offers. Your injry lawyer will explain this in detail when your case gets to this stage.
The main advantage of making Part 36 offers is that they carry costs consequences. If, for example, your opponent makes a Part 36 offer to settle for a particular amount, and this is rejected by you, if the case is to go to a hearing in front of a judge and the case is either lost, or the amount awarded is the same or lower than what your opponent had offered, then you may be ordered to pay an amount of legal costs to your opponent.
Similar rules apply to the other side. If you make a Part 36 offer to settle for a certain amount of money but your opponent rejects it and then you are subsequently awarded more or the same as the offer, not only will your opponent be ordered to pay your legal costs, but he will be ordered to pay enhanced costs in addition.
This means that both sides must take Part 36 offers very seriously before deciding whether to accept them or reject them.
A claim should be taken to court only if both sides have failed to agree an out of court settlement.
If you have suffered an injury in accident caused by the fault of another person, you may be entitled to compensation. Seek free advice from a specialist personal injury lawyer.
Asiimwe Balinda
Personal injury solicitor