In addition to the Pre-action Protocol for personal injury claims accident insurance claim lawyers must also follow the Civil Procedure Rules (the CPR).
The CPR do not only concern accident insurance Claims but all aspects of civil procedure. It gives guidance in relation to court procedure (after taking a case to court).
Before taking an accident insurance claim to court, you must wait at least 3 months after the date of acknowledgment of the Letter of Claim.
But it is advisable that all methods of settlement of your accident insurance claim are explored before going to court because the courts always want to see evidence that you and the other side have attempted to avoid going to court.
The main considerations that should be made are:
• Have you gathered all the evidence to help you and the other side determine the issues in dispute and have you discussed it with each other?
• Have you disclosed the evidence to support your accident insurance claim?
• Have attempts been made to settle the accident insurance claim?
Once your accident insurance lawyer is confident that the above have been considered and there is adequate funding in place (No win No Fee agreement is signed) then court papers can be prepared to take your accident insurance claim to court.
a) Taking your accident insurance claim to court
Before taking your accident insurance claim to court, you should make sure that all forms of negotiation have been exhausted and that at least 3 months have past since the Letter of Claim was sent.
Even if an offer is not received from the other side, you should make a Part 36 offer to settle before going to court.
In addition, before taking your case to court, it’s best to have all the evidence ready such as the medical report and Schedule of your expenses and losses to assist in assessing your compensation settlement.
You would also want to make sure that adequate funding is in place: either Before the Event (legal expenses insurance) of After the Event Insurance needs to be put in place by your accident insurance claims lawyer.
If insurance cannot be obtained it may not be a good idea to go to court.
To start your accident insurance claim in court, you would need to prepare 3 key documents.
i) Claim Form for accident insurance claim
This is the most important document you need to start court proceedings. Your accident insurance claim lawyer will need to fill in your details, the Defendant (the other side) and give a very brief summary of the accident insurance claim and an estimate of how much your claim is worth.
The accident insurance Claim Form must be issued at court within the three year time limit. You then have 4 months to send it to the other side
If the Claim Form is not issued within the 3 year time limit, the claim is statute barred although there are exceptional instances were an application to extend the time limit can be made.
ii. Particulars of accident insurance claim and schedule of loss and expenses
The Particulars of accident insurance claim gives a more detailed summary of your claim, and a summary of the allegations you are making against the Defendant and why you believe the Defendant is to blame for the accident. The Claim Form is normally sent to the other side with the accident insurance particulars of claim, medical evidence and a Schedule of your loss and expenses.
The Schedule of your loss and expenses gives a summary of the expenses that you are claiming.
A copy of all these documents must be sent to court and to the Defendant.
b) Defence to the accident insurance claim
The Defendant must send his Defence to court within 14 days of you sending the court papers to him. The Defendant may however send to you an acknowledgement of service within 14 days; he would then have up to 28 days to send you his Defence.
The Defendant may request an extension of time to send his Defence to you and the court. However, if a Defence is not filed within time or an agreed time, your accident insurance lawyer may request for Default Judgement. A default Judgement means that you have automatically won the case, what is then left is for your compensation settlement to be assessed by the court. A copy of the Defence must be sent to the court and to you.
c) Allocation Questionnaire for Accident Insurance Claim
Once the Court has received the Defence, it will send out Allocation Questionnaires to both sides.
An Allocation Questionnaire is used to help the court to manage the accident insurance claim. It asks questions about the amount still in dispute, experts required number of witnesses etc.
One of the most important questions it asks is whether both sides have tried to negotiate a settlement. It suggests taking one month out to encourage negotiations this is called staying proceedings.
Once all sides have sent in and filed the Allocation Questionnaires with the court, the court will then give Directions as to how both sides should prepare for trial. This will include a time table for disclosing documents, exchanging witness statements and updating any documents which needs updating. Within the Allocation Questionnaire, the court invites both sides to suggest Directions, it is normally better if these can be agreed between both sides.
The idea behind the Directions is to ensure that both sides work together to prepare adequately and efficiently for trial.
d) Pre-trial checklist for accident insurance claim
After the period within which parties are expected to having finalised their preparations the court will send a pre-trial checklist.
The accident insurance claim pre-trial checklist is similar to the Allocation Questionnaire but looks to ensure that parties are prepared for trial, if not why not and how much more time is needed.
Once this form is sent to the court and no further directions are needed, the court will send out a Notice of the trial date for your accident insurance claim.
This Guide was prepared by Balinda & Co to help you properly plan your accident insurance claim.
Balinda & Co have many years experience and have helped a lot of people who have suffered injuries in accidents to make accident insurance claims.
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Want help with your accident insurance claim? Please contact us or call 0800 321 3287 and let us talk it through.