Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims

Contents

Title
Number
SECTION I - INTRODUCTION

Definitions Para 1.1
Preamble Para 2.1
Aims   
Para 3.1
Scope   
Para 4.1
SECTION II – GENERAL PROVISIONS
Communication between the parties   
Para 5.1
Time periods   
Para 5.3
Limitation period   
Para 5.7
Claimant’s reasonable belief of the value of the claim   
Para 5.9
Claimants without a legal representative   
Para 5.10
Discontinuing the Protocol process   
Para 5.11
SECTION III – THE STAGES OF THE PROCESS 

Stage 1
Completion of the Claim Notification Form   
Para 6.1
Rehabilitation   
Para 6.6
Failure to complete the Claim Notification Form   
Para 6.7
Response    
Para 6.9
Application for a certificate of recoverable benefits   
Para 6.12
Contributory Negligence, liability not admitted or failure to respond   
Para 6.13
Stage 1 fixed costs   
Para 6.16
Stage 2

Medical Reports    
Para 7.1
Subsequent expert reports   
Para 7.6
Non-medical reports Para 7.7
Specialist legal advice Para 7.8
Details of loss of earnings
Para 7.9
Witness Statements Para 7.10
Stay of process Para 7.11
Request for an interim payment   
Para 7.12
Interim payment of £1,000   
Para 7.17
Interim payment of more than £1,000   
Para 7.18
Application for a certificate of recoverable benefits   
Para 7.22
Request for an interim payment where the claimant is a child   
Para 7.24
Interim payment – supplementary provisions   
Para 7.26
Costs of expert medical and non-medical reports and specialist legal advice obtained   
Para 7.29
Submitting the Stage 2 Settlement Pack to defendant   
Para 7.30
Consideration of claim Para 7.32
Defendant accepts offer or makes counter-offer   
Para 7.35
Withdrawal of offer after the consideration period Para 7.43
Settlement Para 7.44
Application for certificate of recoverable benefits   
Para 7.46
Failure to reach agreement – general     
Para 7.48
Non-settlement payment by the defendant at the end of Stage 2   
Para 7.53
General provisions   
Para 7.59
Stage 3
 
Stage 3 Procedure  
Para 8.1

SECTION I - INTRODUCTION

Definitions

1.1  In this Protocol—

(1) ‘admission of liability’ means the defendant admits that—

(a) the breach of duty occurred;

(b) the defendant thereby caused some loss to the claimant, the nature and extent of which is not admitted; and

(c) the defendant has no accrued defence to the claim under the Limitation Act 1980;

(2) ‘bank holiday’ means a bank holiday under the Banking and Financial Dealings Act 1971;

(3) ‘business day’ means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day;

(4) ‘certificate of recoverable benefits’ has the same meaning as in rule 36.22(1)(e)(i) of the Civil Procedure Rules 1998.

(5) ‘child’ means a person under 18;

(6) ‘claim’ means a claim, prior to the start of proceedings, for payment of damages under the process set out in this Protocol;

(7) ‘claimant’ means a person starting a claim under this Protocol ; unless the context indicated that it means the claimant’s legal representative;

(8) ‘clinical negligence’ has the same meaning as in section 58C of the Courts and Legal Services Act 1990;

(9) ‘CNF’ means a Claim Notification Form;

(10) ‘deductible amount’ has the same meaning as in rule 36.22(1)(d) of the Civil Procedure Rules 1998;

(11) ‘defendant’ includes, where the context indicates, the defendant’s insurer or legal representative;

(12) ‘disease claim’ means a claim within sub-paragraph (14)(b);

(13) ‘employee’ has the meaning given to it by section 2(1) of the Employers’ Liability (Compulsory Insurance) Act 1969;

(14) ‘employers’ liability claim’ means a claim by an employee against their employer for damages arising from—

(a) a bodily injury sustained by the employee in the course of employment; or

(b) a disease that the claimant is alleged to have contracted as a consequence of the employer’s breach of statutory or common law duties of care in the course of the employee’s employment, other than a physical or psychological injury caused by an accident or other single event;

(15) ‘legal representative’ has the same meaning as in rule 2.3(1) of the Civil Procedure Rules 1998;

(16) ‘medical expert’ means a person who is—

(a) registered with the General Medical Council;

(b) registered with the General Dental Council; or    

(c) a Psychologist or Physiotherapist registered with the Health Professions Council;

(17) ‘pecuniary losses’ means past and future expenses and losses; and

(18) ‘public liability claim’—

(a) means a claim for damages for personal injuries arising out of a breach of a statutory or common law duty of care made against—

(i) a person other than the claimant’s employer; or

(ii) the claimant’s employer in respect of matters arising other than in the course the claimant’s employment; but

(b) does not include a claim for damages arising from a disease that the claimant is alleged to have contracted as a consequence of breach of statutory or common law duties of care, other than a physical or psychological injury caused by an accident or other single event;

(19) ‘Type C fixed costs’ has the same meaning as in rule 45.18(2) of the Civil Procedure Rules 1998; and

(20) ‘vulnerable adult’ has the same meaning as in paragraph 3(5) of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012

1.2  A reference to a rule or practice direction, unless otherwise defined, is a reference to a rule in the Civil Procedure Rules 1998 (‘CPR’) or a practice direction supplementing them.

1.3  Subject to paragraph 1.4 the standard forms used in the process set out in this Protocol are available from Her Majesty’s Courts and Tribunals Service (‘HMCTS’) website at www.justice.gov.uk/forms/hmcts—

(1) Claim Notification Form (‘Form EL1’, ‘Form ELD1’ and ‘Form PL1’– which are referred to in this Protocol as ‘the CNF’);

(2) Defendant Only Claim Notification Form (‘Form EL2’, ‘Form ELD2’ and ‘Form PL2’);

(3) Medical Report Form (‘Form EPL3’);

(4) Interim Settlement Pack Form (‘Form EPL4’);

(5) Stage 2 Settlement Pack Form (‘Form EPL5’);

(6) Court Proceedings Pack (Part A) Form (‘Form EPL6’); and

(7) Court Proceedings Pack (Part B) Form (‘Form EPL7’).

1.4  The information required in Form EPL3 may be provided in a different format to that set out in that Form.

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Preamble

2.1  This Protocol describes the behaviour the court expects of the parties prior to the start of proceedings where a claimant claims damages valued at no more than £25,000 in an employers’ liability claim or in a public liability claim.  The Civil Procedure Rules 1998 enable the court to impose costs sanctions where this Protocol is not followed.

Aims

3.1  The aim of this Protocol is to ensure that—

(1) the defendant pays damages and costs using the process set out in the Protocol without the need for the claimant to start proceedings;

(2) damages are paid within a reasonable time; and 

(3) the claimant’s legal representative receives the fixed costs at  each appropriate stage.

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Scope

4.1  This Protocol applies where—

(1) either—

(a) the claim arises from an  accident occurring on or after 31 July  2013; or

(b) in a disease claim, no letter of claim has been sent to the defendant before 31 July 2013;

(2) the claim includes damages in respect of personal injury;

(3) the claimant values the claim at not more than £25,000 on a full liability basis including pecuniary losses but excluding interest (‘the upper limit’); and

(4) if proceedings were started the small claims track would not be the normal track for that claim.

(Rule 26.6 provides that the small claims track is not the normal track where the value of any claim for damages for personal injuries (defined as compensation for pain, suffering and loss of amenity) is more than £1,000.)

4.2  This Protocol ceases to apply to a claim where, at any stage, the claimant notifies the defendant that the claim has now been revalued at more than the upper limit.

4.3  This Protocol does not apply to a claim—

(1) where the claimant or defendant acts as personal representative of a deceased person;

(2) where the claimant or defendant is a protected party as defined in rule 21.1(2);

(3) in the case of a public liability claim, where the defendant is an individual (‘individual’ does not include a defendant who is sued in their business capacity or in their capacity as an office holder);

(4) where the claimant is bankrupt;

(5) where the defendant is insolvent and there is no identifiable insurer;

(6) in the case of a disease claim, where there is more than one employer defendant;

(7) for personal injury arising from an accident or alleged breach of duty occurring outside England and Wales;

(8) for damages in relation to harm, abuse or neglect of or by children or vulnerable adults;

(9) which includes a claim for clinical negligence;

(10) for mesothelioma;

(11) for damages arising out of a road traffic accident (as defined in paragraph 1.1(16) of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents).

4.4  The fixed costs in rule 45.18 apply in relation to a claimant only where a claimant has a legal representative.

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SECTION II – GENERAL PROVISIONS 

Communication between the parties

5.1  Subject to paragraphs 6.1 and 6.2, where the Protocol requires information to be sent to a party it must be sent via www.claimsportal.org.uk (or any other Portal address that may be prescribed from time to time). The claimant will give an e-mail address for contact in the Claim Notification Form (“CNF”). All written communications not required by the Protocol must be sent by e-mail.

5.2  Where the claimant has sent the CNF to the wrong defendant, the claimant may, in this circumstance only, resend the relevant form to the correct defendant.  The period in paragraph 6.12 starts from the date that the form was sent to the correct defendant.

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Time periods

5.3  A reference to a fixed number of days is a reference to business days as defined in paragraph 1.1(3).

5.4  Where a party should respond within a fixed number of days, the period for response starts the first business day after the information was sent to that party.

5.5  All time periods, except those stated in—

(1) paragraph 6.11 (response);

(2) paragraph 7.34 (the further consideration period),

may be varied by agreement between the parties.

5.6  Where this Protocol requires the defendant to pay an amount within a fixed number of days the claimant must receive the cheque or the transfer of the amount from the defendant before the end of the period specified in the relevant provision.

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Limitation period

5.7  Where compliance with this Protocol is not possible before the expiry of the limitation period the claimant may start proceedings and apply to the court for an order to stay (i.e. suspend) the proceedings while the parties take steps to follow this Protocol.  Where proceedings are started in a case to which this paragraph applies the claimant should use the procedure set out under Part 8 in accordance with Practice Direction 8B (“the Stage 3 Procedure”).

5.8  Where the parties are then unable to reach a settlement at the end of Stage 2 of this Protocol the claimant must, in order to proceed to Stage 3, apply to lift the stay and request directions in the existing proceedings.

Claimant’s reasonable belief of the value of the claim

5.9  Where the claimant reasonably believes that the claim is valued at between £1,000 and £25,000 but it subsequently becomes apparent that the value of the claim is less than £1,000, the claimant is entitled to the Stage 1 and (where relevant) the Stage 2 fixed costs.

Claimants without a legal representative 

5.10  Where the claimant does not have a legal representative, on receipt of the CNF the defendant must explain—

(1) the period within which a response is required; and

(2) that the claimant may obtain independent legal advice.

Discontinuing the Protocol process

5.11  Claims which no longer continue under this Protocol cannot subsequently re-enter the process.

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SECTION III – THE STAGES OF THE PROCESS 

Stage 1

Completion of the Claim Notification Form

6.1   

(1) The claimant must complete and send—

(a) the CNF to the defendant’s insurer, if known; and

(b) the Defendant Only Claim Notification Form (“Defendant Only CNF”) to the defendant,

but the requirement to send the form to the defendant may be ignored in a disease claim where the CNF has been sent to the insurer and the defendant has been dissolved, is insolvent or has ceased to trade.

(2) If—

(a) the insurer’s identity is not known; or

(b) the defendant is known not to hold insurance cover,
the CNF must be sent to the defendant’s registered office or principal place of business and no Defendant Only CNF is required. 

(3) Where the insurer’s identity is not known, the claimant must make a reasonable attempt to identify the insurer and, in an employers’ liability claim, the claimant must have carried out a database search through the Employers’ Liability Tracing Office.

(4) In a disease claim, the CNF should be sent to the insurer identified as the insurer last on risk for the employer for the material period of employment.

6.2  If the CNF or Defendant Only CNF cannot be sent to the defendant via the prescribed Portal address, it must be sent via first class post; and this must be done, in a case where the CNF is sent to the insurer, at the same time or as soon as practicable after the CNF is sent.

6.3  All boxes in the CNF that are marked as mandatory must be completed before it is sent.  The claimant must make a reasonable attempt to complete those boxes that are not marked as mandatory.

6.4  Where the claimant is a child, this must be noted in the relevant section of the CNF.

6.5  The statement of truth in the CNF must be signed either by the claimant or by the claimant’s legal representative where the claimant has authorised the legal representative to do so and the legal representative can produce written evidence of that authorisation. Where the claimant is a child the statement of truth may be signed by the parent or guardian.  On the electronically completed CNF the person may enter their name in the signature box to satisfy this requirement.

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Rehabilitation

6.6  The claimant must set out details of rehabilitation in the CNF. The parties should at all stages consider the Rehabilitation Code which may be found at: http://www.iua.co.uk/IUA_Member/Publications

Failure to complete the Claim Notification Form

6.7  Where the defendant considers that inadequate mandatory information has been provided in the CNF that shall be a valid reason for the defendant to decide that the claim should no longer continue under this Protocol.

6.8  Rule 45.24(2) sets out the sanctions available to the court where it considers that the claimant provided inadequate information in the CNF.

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Response

6.9  The defendant must send to the claimant an electronic acknowledgment the next day after receipt of the CNF.

6.10  If the claimant has sent the CNF to the defendant in accordance with paragraph 6.1(2)—

(a) the defendant must send to the claimant an electronic acknowledgment the next day after receipt of the CNF and send the CNF to the insurer at the same time and advise the claimant that they have done so;

(b) the insurer must send to the claimant an electronic acknowledgment  the next day after its receipt by the insurer;

and

(c) the claimant must then submit the CNF to the insurer via the Portal as soon as possible and, in any event, within 30 days of the day upon which the claimant first sent it to the defendant.

6.11  The defendant must complete the ‘Response’ section of the CNF (“the CNF response”) and send it to the claimant—

(a) in the case of an employers’ liability claim, within 30 days of the step taken pursuant to paragraph 6.1; and

(b) in the case of a public liability claim, within 40 days of the step taken pursuant to paragraph 6.1.

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Application for a certificate of recoverable benefits

6.12  The defendant must, before the end of Stage 1, apply to the Compensation Recovery Unit (CRU) for a certificate of recoverable benefits.

Contributory Negligence, liability not admitted or failure to respond

6.13  The claim will no longer continue under this Protocol where the defendant, within the relevant period in paragraph 6.11 —

(1) makes an admission of liability but alleges contributory negligence;

(2) does not complete and send the CNF response;

(3) does not admit liability; or

(4) notifies the claimant that the defendant considers that—

(a) there is inadequate mandatory information in the CNF; or

(b) if proceedings were issued, the small claims track would be the normal track for that claim.

6.14  Where the defendant does not admit liability the defendant must give brief reasons in the CNF response.

6.15  Where paragraph 6.13 applies the claim will proceed under the relevant Pre-Action Protocol and the CNF will serve as the letter of claim (except where the claim no longer continues under this Protocol because the CNF contained inadequate information).  Time will be treated as running under the relevant Pre-Action Protocol from the date the form of acknowledgment is served under paragraph 6.9 or 6.10.

(For admissions made in the course of the process under this Protocol, see rule 14.1B.)

(Paragraph 2.10A of the Pre-Action Protocol on Personal Injury and paragraph 6.10A of the Pre-Action Protocol for Disease and Illness Claims provide that the CNF can be used as the letter of claim except where the claim no longer continues under this Protocol because the CNF contained inadequate information.)

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Stage 1 fixed costs

6.16  Except where the claimant is a child, where liability is admitted the defendant must pay the Stage 1 fixed costs in rule 45.18 within 10 days after receiving the Stage 2 Settlement Pack.

6.17  Where the defendant fails to pay the Stage 1 fixed costs within the period specified in paragraph 6.16 the claimant may give written notice that the claim will no longer continue under this Protocol.  Unless the claimant’s notice is sent to the defendant within 10 days after the expiry of the period in paragraph 6.16 the claim will continue under this Protocol.

Stage 2

Medical reports

7.1  The claimant should obtain a medical report, if one has not already been obtained.

7.2  It is expected that most claimants will obtain a medical report from one expert but additional medical reports may be obtained from other experts where the injuries require reports from more than one medical discipline.

7.3  The claimant must check the factual accuracy of any medical report before it is sent to the defendant.  There will be no further opportunity for the claimant to challenge the factual accuracy of a medical report after it has been sent to the defendant.

7.4  

(1) The medical expert should identify within the report—

(a) the medical records that have been reviewed; and

(b) the medical records considered relevant to the claim.     

(2) The claimant must disclose with any medical report sent to the defendant any medical records which the expert considers relevant.

7.5  Any relevant photograph(s) of the claimant’s injuries upon which the claimant intends to rely should also be disclosed with the medical report.

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Subsequent medical reports

7.6  A subsequent medical report from an expert who has already reported must be justified. A report may be justified where—

(1) the first medical report recommends that further time is required before a prognosis of the claimant’s injuries can be determined; or

(2) the claimant is receiving continuing treatment; or

(3) the claimant has not recovered as expected in the original prognosis.

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Non-medical reports

7.7  

(1) In most cases, a report from a non-medical expert will not be required, but a report may be obtained where it is reasonably required to value the claim.

(2) Paragraph 7.2 applies to non-medical expert reports as it applies to expert medical reports.

Specialist legal advice

7.8  In most cases under this Protocol, it is expected that the claimant’s legal representative will be able to value the claim. In some cases with a value of more than £10,000, an additional advice from a specialist solicitor or from counsel may be justified where it is reasonably required to value the claim.

Details of loss of earnings

7.9  In an employers’ liability claim, the defendant must, within 20 days of the date of admission of liability, provide earnings details to verify the claimant’s loss of earnings, if any.

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Witness Statements

7.10  In most cases, witness statements, whether from the claimant or otherwise, will not be required.   One or more statements may, however, be provided where reasonably required to value the claim.

Stay of process

7.11  Where the claimant needs to obtain a subsequent medical report or a report from a non-medical expert the parties should agree to stay the process in this Protocol for a suitable period.  The claimant may then request an interim payment in accordance with paragraphs 7.12 to 7.20.

Request for an interim payment

7.12  Where the claimant requests an interim payment of £1,000, the defendant should make an interim payment to the claimant in accordance with paragraph 7.17.

7.13  The claimant must send to the defendant the Interim Settlement Pack and initial medical reports (including any recommendation that a subsequent medical report is justified) in order to request the interim payment.

7.14  The claimant must also send evidence of pecuniary losses and disbursements.  This will assist the defendant in considering whether to make an offer to settle the claim.

7.15  Where an interim payment of more than £1,000 is requested the claimant must specify in the Interim Settlement Pack the amount requested, the heads of damage which are the subject of the request and the reasons for the request.

7.16  Unless the parties agree otherwise—

(a) the interim payment of £1,000 is only in relation to general damages; and     

(b)  where more than £1,000 is requested by the claimant, the amount in excess of £1,000 is only in relation to pecuniary losses.

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Interim payment of £1,000

7.17 

(1) Where paragraph 7.12 applies the defendant must pay £1,000 within 10 days of receiving the Interim Settlement Pack.

(2) Sub-paragraph (1) does not apply in a claim in respect of a disease to which the Pneumoconiosis etc. (Workers' Compensation) Act 1979  applies unless there is a valid CRU certificate showing no deduction for recoverable lump sum payments.

Interim payment of more than £1,000

7.18  Subject to paragraphs 7.19 and 7.21, where the claimant has requested an interim payment of more than £1,000 the defendant must pay—

(1) the full amount requested less any deductible amount which is payable to the CRU;

(2) the amount of £1,000; or

(3) some other amount of more than £1,000 but less than the amount requested by the claimant,

within 15 days of receiving the Interim Settlement Pack.

7.19  Where a payment is made under paragraphs 7.18(2) or (3) the defendant must briefly explain in the Interim Settlement Pack why the full amount requested by the claimant is not agreed.

7.20  Where the claim is valued at more than £10,000, the claimant may use the procedure at paragraphs 7.12 to 7.19 to request more than one interim payment.

7.21  Nothing in this Protocol is intended to affect the provisions contained in the Rehabilitation Code.

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Application for a certificate of recoverable benefits

7.22  Paragraph 7.23 applies where the defendant agrees to make a payment in accordance with paragraph 7.18(1) or (3) but does not yet have a certificate of recoverable benefits or does not have one that will remain in force for at least 10 days from the date of receiving the Interim Settlement Pack.

7.23  The defendant should apply for a certificate of recoverable benefits as soon as possible, notify the claimant that it has done so and must make the interim payment under paragraph 7.18(1) or (3) no more than 30 days from the date of receiving the Interim Settlement Pack.

Request for an interim payment where the claimant is a child

7.24  The interim payment provisions in this Protocol do not apply where the claimant is a child.  Where the claimant is a child and an interim payment is reasonably required proceedings must be started under Part 7 of the CPR and an application for an interim payment can be made within those proceedings.

(Rule 21.10 provides that no payment, which relates to a claim by a child, is valid without the approval of the court.)

7.25  Paragraph 7.24 does not prevent a defendant from making a payment direct to a treatment provider.

Interim payment – supplementary provisions

7.26  Where the defendant does not comply with paragraphs 7.17 or 7.18 the claimant may start proceedings under Part 7 of the CPR and apply to the court for an interim payment in those proceedings.

7.27  Where the defendant does comply with paragraph 7.18(2) or (3) but the claimant is not content with the amount paid, the claimant may still start proceedings.  However, the court will order the defendant to pay no more than the Stage 2 fixed costs where the court awards an interim payment of no more than the amount offered by the defendant or the court makes no award.

7.28  Where paragraph 7.26 or 7.27 applies the claimant must give notice to the defendant that the claim will no longer continue under this Protocol.  Unless the claimant’s notice is sent to the defendant within 10 days after the expiry of the period in paragraphs 7.17, 7.18 or 7.23 as appropriate, the claim will continue under this Protocol.

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Costs of expert medical and non-medical reports and specialist legal advice obtained

7.29  

(1) Where the claimant obtains more than one expert report or an advice from a specialist solicitor or counsel—

(a) the defendant at the end of Stage 2 may refuse to pay; or

(b) the court at Stage 3 may refuse to allow,

the costs of any report or advice not reasonably required.

(2) Therefore, where the claimant obtains more than one expert report or obtains an advice from a specialist solicitor or counsel—

(a) the claimant should explain in the Stage 2 Settlement Pack  why they obtained a further report or such advice; and

(b) if relevant, the defendant should in the Stage 2 Settlement Pack  identify the report or reports or advice for which they will not pay and explain why they will not pay for that report or reports or advice.

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Submitting the Stage 2 Settlement Pack to the defendant

7.30  The Stage 2 Settlement Pack must comprise—

(1) the Stage 2 Settlement Pack Form;

(2) a medical report or reports;

(3) evidence of pecuniary losses;

(4) evidence of disbursements (for example the cost of any medical report);

(5) any non-medical expert report;

(6) any medical records/photographs served with medical reports; and

(7) any witness statements.

7.31  The claimant should send the Stage 2 Settlement Pack to the defendant within 15 days of the claimant approving —

(1) the final medical report and agreeing to rely on the prognosis in that     report; or

(2) any non-medical expert report,

whichever is later.

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Consideration of claim

7.32  There is a 35 day period for consideration of the Stage 2 Settlement Pack by the defendant (“the total consideration period”).  This comprises a period of up to 15 days for the defendant to consider the Stage 2 Settlement Pack (“the initial consideration period”) and make an offer.  The remainder of the total consideration period (“the negotiation period”) is for any further negotiation between the parties.

7.33  The total consideration period can be extended by the parties agreeing to extend either the initial consideration period or the negotiation period or both.

7.34  Where a party makes an offer 5 days or less before the end of the total consideration period (including any extension to this period under paragraph 7.32), there will be a further period of 5 days after the end of the total consideration period for the relevant party to consider that offer.  During this period (“the further consideration period”) no further offers can be made by either party.

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Defendant accepts offer or makes counter-offer

7.35  Within the initial consideration period (or any extension agreed under paragraph 7.33) the defendant must either accept the offer made by the claimant on the Stage 2 Settlement Pack Form or make a counter-offer using that form.

7.36  The claim will no longer continue under this Protocol where the defendant gives notice to the claimant within the initial consideration period (or any extension agreed under paragraph 7.33) that the defendant—

(a) considers that, if proceedings were started, the small claims track  would be the normal track for that claim; or

(b) withdraws the admission of causation as defined in paragraph 1.1(1)(b).

7.37  Where the defendant does not respond within the initial consideration period (or any extension agreed under paragraph 7.33), the claim will no longer continue under this Protocol and the claimant may start proceedings under Part 7 of the CPR.

7.38  When making a counter-offer the defendant must propose an amount for each head of damage and may, in addition, make an offer that is higher than the total of the amounts proposed for all heads of damage. The defendant must also explain in the counter-offer why a particular head of damage has been reduced.  The explanation will assist the claimant when negotiating a settlement and will allow both parties to focus on those areas of the claim that remain in dispute.

7.39  Where the defendant has obtained a certificate of recoverable benefits from the CRU the counter offer must state the name and amount of any deductible amount.

7.40  On receipt of a counter-offer from the defendant the claimant has until the end of the total consideration period or the further consideration period to accept or decline the counter offer.

7.41  Any offer to settle made at any stage by either party will automatically include, and cannot exclude—

(1) the Stage 1 and Stage 2 fixed costs in rule 45.18;

(2) an agreement in principle to pay a sum equal to the Type C fixed costs of an additional advice on quantum of damages where such advice is justified under paragraph 7.8;

(3) an agreement in principle to pay relevant disbursements allowed in accordance with rule 45.19; or

(4) where applicable, any success fee in accordance with rule 45.31(1) (as it was in force immediately before 1 April 2013).

7.42  Where there is a dispute about whether an additional advice on quantum of damages is justified or about the amount or validity of any disbursement, the parties may use the procedure set out in rule 46.14.

(Rule 46.14 provides that where the parties to a dispute have a written agreement on all issues but have failed to agree the amount of the costs, they may start proceedings under that rule so that the court can determine the amount of those costs.)

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Withdrawal of offer after the consideration period

7.43  Where a party withdraws an offer made in the Stage 2 Settlement Pack Form after the total consideration period or further consideration period, the claim will no longer continue under this Protocol and the claimant may start proceedings under Part 7 of the CPR.

Settlement

7.44  Except where the claimant is a child or paragraphs 7.46 and 7.47 apply, the defendant must pay—

(1) the agreed damages less any—

(a) deductible amount which is payable to the CRU; and

(b) previous interim payment;

(2) any unpaid Stage 1 fixed costs in rule 45.18;

(3) the Stage 2 fixed costs in rule 45.18;

(4) where an additional advice on quantum of damages is justified under paragraph 7.8, a sum equal to the Type C fixed costs to cover the cost of that advice;

(5) the relevant disbursements allowed in accordance with rule 45.19; and

(6) where applicable, any success fee in accordance with rule 45.31(1) (as it was in force immediately before 1 April 2013),

within 10 days of the parties agreeing a settlement.

(Rule 21.10 provides that the approval of the court is required where, before proceedings are started, a claim is made by a child and a settlement is reached.  The provisions in paragraph 6.1 of Practice Direction 8B set out what must be filed with the court when an application is made to approve a settlement.) 

7.45  Where the parties agree a settlement for a greater sum than the defendant had offered during the total consideration period or further consideration period and after the Court Proceedings Pack has been sent to the defendant but before proceedings are issued under Stage 3,

(1) paragraph 7.44 applies; and

(2) the defendant must also pay the fixed late settlement costs in rule 45.23A.

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Application for certificate of recoverable benefits

7.46  Paragraph 7.47 applies where, at the date of the acceptance of an offer in the Stage 2 Settlement Pack, the defendant does not have a certificate of recoverable benefits that will remain in force for at least 10 days.

7.47  The defendant should apply for a fresh certificate of recoverable benefits as soon as possible, notify the claimant that it has done so and must pay the amounts set out in paragraph 7.44 within 30 days of the end of the relevant period in paragraphs 7.32 to 7.34.

Failure to reach agreement - general

7.48  Where the parties do not reach an agreement on the damages to be paid within the periods specified in paragraphs 7.32 to 7.34, the claimant must send to the defendant the Court Proceedings Pack (Part A and Part B) Form which must contain—

(a) in Part A, the final schedule of the claimant’s losses and the defendant’s responses comprising only the figures specified during the periods in paragraphs 7.32 to 7.34, together with supporting comments and evidence from both parties on any disputed heads of damage; and

(b) in Part B, the final offer and counter offer from the Stage 2 Settlement Pack Form.

7.49  Comments in the Court Proceedings Pack (Part A) Form must not raise anything that has not been raised in the Stage 2 Settlement Pack Form.

7.50  The defendant should then check that the Court Proceedings Pack (Part A and Part B) Form complies with paragraphs 7.48 to 7.49. If the defendant considers that the Court Proceedings Pack (Part A and Part B) Form does not comply it must be returned to the claimant within 5 days with an explanation as to why it does not comply.

7.51  Where the defendant intends to nominate a legal representative to accept service the name and address of the legal representative should be provided in the Court Proceedings Pack (Part A) Form.

7.52  Where the defendant fails to return the Court Proceedings Pack (Part A and Part B) Form within the period in paragraph 7.50, the claimant should assume that the defendant has no further comment to make.

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Non-settlement payment by the defendant at the end of Stage 2

7.53  Except where the claimant is a child the defendant must pay to the claimant—

(1) the final offer of damages made by the defendant in the Court Proceedings Pack (Part A and Part B) Form less any—

(a) deductible amount which is payable to the CRU; and

(b) previous interim payment(s);

(2) any unpaid Stage 1 fixed costs in rule 45.18;

(3) the Stage 2 fixed costs in rule 45.18; and

(4) the disbursements in rule 45.19(2) that have been agreed.

7.54  Where the amount of a disbursement is not agreed the defendant must pay such amount for the disbursement as the defendant considers reasonable.

7.55  Subject to paragraphs 7.56 and 7.57 the defendant must pay the amounts in paragraph 7.53 and 7.54 within 15 days of receiving the Court Proceedings Pack (Part A and Part B) Form from the claimant.

7.56  Paragraph 7.57 applies where the defendant is required to make the payments in paragraph 7.53 but does not have a certificate of recoverable benefits that remains in force for at least 10 days.

7.57  The defendant should apply for a fresh certificate of recoverable benefits as soon as possible, notify the claimant that it has done so and must pay the amounts set out in paragraph 7.53 within 30 days of receiving the Court Proceedings Pack (Part A and Part B) Form from the claimant.

7.58  Where the defendant does not comply with paragraphs 7.55 or 7.57 the claimant may give written notice that the claim will no longer continue under this Protocol and start proceedings under Part 7 of the CPR.

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General provisions

7.59  Where the claimant gives notice to the defendant that the claim is unsuitable for this Protocol (for example, because there are complex issues of fact or law or where claimants contemplate applying for a Group Litigation Order) then the claim will no longer continue under this Protocol.  However, where the court considers that the claimant acted unreasonably in giving such notice it will award no more than the fixed costs in rule 45.18.

Stage 3

Stage 3 Procedure

8.1  The Stage 3 Procedure is set out in Practice Direction 8B.

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