Pre-Action Delays By Claimants' Solicitors
Pre-Action Delays by Claimants’ Solicitors – What can be done?
The Pre-Action Personal Injury Protocol of course aims to encourage a spirit of co-operation between the parties and a “cards on the table” approach. Claimants’ Solicitors are not hesitant to hold Insurers to the Protocol, and frequently issue applications for pre-action disclosure under CPR 31.16. However, there are often delays on the Claimant’s side. Insurers can be left waiting a long time for documents, medical evidence and the Schedule. Other than creating a paper trail of correspondence in respect of any delays, what can be done?
Realistically, the options for Insurers are rather limited and there is a lack of relevant case law. The CPR contains no clear enforcement procedure in respect of pre-action delays on the Claimant’s side. However, there are possible courses of action.
Pre-Action Disclosure Application against the Claimant
Such Applications are typically based upon the Protocol requirement that the Defendant’s representatives should serve material documents with the letter of reply when liability is denied.
Typically, the Defendant will not require at the outset documents from the Claimant. However, such cases are not unheard of. For example, in a complex building site dispute case the injured Claimant may be in closer proximity to contemporary accident investigation documents than, say, a sub-contract scaffolding company further removed from events on the ground.
In such situations, there is no reason why the Defendant cannot itself issue an Application for pre-action disclosure. CPR 31.16 simply refers to “the Applicant” and “the Respondent” to any such Application; it is not a one way procedure. The Application must of course comply with the other requirements of 31.16, for example it must be supported by evidence and the documents must be within the Claimant’s “possession, custody or power”. Pre-action disclosure must be “desirable in order to…dispose fairly of the anticipated proceedings”. It is suggested that this requirement could cause difficulties if the documents sought include the Claimant’s medical records.
A note of caution is that the Respondent’s costs of a pre-action disclosure Application are normally paid by the Applicant, pursuant to CPR 48.1(2). To minimise the risk of an adverse costs Order, there should be a paper trail detailing the Claimant’s delays.