Pre-Action Protocol for Disease and Illness Claims
Pre-Action Protocol for Disease and Illness Claims
Lord Woolf in his final Access to Justice Report of July 1996 recommended the development of protocols: ‘To build on and increase the benefits of early but well informed settlements which genuinely satisfy both parties to a dispute.’
The aims of these protocols are:
- more contact between the parties
- better and earlier exchange of information
- better investigation by both sides
- to put the parties in a position where they may be able to settle cases fairly and early without litigation
- to enable proceedings to run to the court's timetable and efficiently, if litigation does become necessary.
The concept of protocols is relevant to a range of initiatives for good claims practice, especially:
- predictability in the time needed for steps to be taken
- standardisation of relevant information, including documents to be disclosed.
The Courts will be able to treat the standards set in protocols as the normal reasonable approach. If proceedings are issued, it will be for the court to decide whether non-compliance with a protocol should merit adverse consequences. Guidance on the court's likely approach will be given from time to time in practice directions.
If the court has to consider the question of compliance after proceedings have begun, it will not be concerned with minor infringements, e.g. failure by a short period to provide relevant information. One minor breach will not exempt the ‘innocent’ party from following the protocol. The court will look at the effect of non-compliance on the other party when deciding whether to impose sanctions.
2 NOTES OF GUIDANCE
SCOPE OF THE PROTOCOL
This protocol is intended to apply to all personal injury claims where the injury is not as the result of an accident but takes the form of an illness or disease.
This protocol covers disease claims which are likely to be complex and frequently not suitable for fast-track procedures even though they may fall within fast track limits. Disease for the purpose of this protocol primarily covers any illness physical or psychological, any disorder, ailment, affliction, complaint, malady, or derangement other than a physical or psychological injury solely caused by an accident or other similar single event.
In appropriate cases it may be agreed between the parties that this protocol can be applied rather than the Pre-Action Protocol for Personal Injury Claims where a single event occurs but causes a disease or illness.
This protocol is not limited to diseases occurring in the workplace but will embrace diseases occurring in other situations for example through occupation of premises or the use of products. It is not intended to cover those cases, which are dealt with as a ‘group’ or ‘class’ action.
The ‘cards on the table’ approach advocated by the Pre-Action Protocol for Personal Injury Claims is equally appropriate to disease claims. The spirit of that protocol, and of the clinical negligence protocol is followed here, in accordance with the sense of the civil justice reforms.
The timetable and the arrangements for disclosing documents and obtaining expert evidence may need to be varied to suit the circumstances of the case. If a party considers the detail of the protocol to be inappropriate they should communicate their reasons to all of the parties at that stage. If proceedings are subsequently issued, the court will expect an explanation as to why the protocol has not been followed, or has been varied.
In a terminal disease claim with short life expectancy, for instance where a claimant has a disease such as mesothelioma, the time scale of the protocol is likely to be too long. In such a claim, the claimant may not be able to follow the protocol and the defendant would be expected to treat the claim with urgency including any request for an interim payment.
2A ALTERNATIVE DISPUTE RESOLUTION
The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs.
It is not practicable in this protocol to address in detail how the parties might decide which method to adopt to resolve their particular dispute. However, summarised below are some of the options for resolving disputes without litigation:
- Discussion and negotiation.
- Early neutral evaluation by an independent third party (for example, a lawyer experienced in the field of disease or illness, or an individual experienced in the subject matter of the claim).
- Mediation – a form of facilitated negotiation assisted by an independent neutral party,
- Arbitration (where an independent person or body makes a binding decision).
The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS Direct Information Leaflet 23 (http://www.communitylegaladvice.org.uk/media/808/FD/leaflet23e.pdf), which lists a number of organisations that provide alternative dispute resolution services.
It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR, but the parties should continue to consider the possibility of reaching a settlement at all times.
3 THE AIMS OF THE PROTOCOL
The general aims of the protocol are –
- to resolve as many disputes as possible without litigation;
- where a claim cannot be resolved to identify the relevant issues which remain in dispute.
The specific objectives are –
- to encourage early communication of the perceived problem between the parties or their insurers;
- to encourage employees to voice any concerns or worries about possible work related illness as soon as practicable;
- to encourage employers to develop systems of early reporting and investigation of suspected occupational health problems and to provide full and prompt explanations to concerned employees or former employees;
- to apply such principles to perceived problems outside the employer/employee relationship, for example occupiers of premises or land and producers of products;
- to ensure that sufficient information is disclosed by both parties to enable each to understand the other's perspective and case, and to encourage early resolution;
- to provide an early opportunity for employers (past or present) or their insurers to identify cases where an investigation is required and to carry out that investigation promptly;
- to encourage employers (past or present) or other defendants to involve and identify their insurers at an early stage;
- to ensure that all relevant records including health and personnel records are provided to employees (past or present) or their appointed representatives promptly on request, by any employer (past or present) or their insurers. This should be complied with to a realistic timetable;
- to ensure that relevant records which are in the claimant’s possession including where appropriate GP and hospital records are made available to the defendant or to the nominated insurance manager or solicitor representing the defendant by claimants or their advisers at an appropriate stage;
- to proceed on a reasonable timetable where a resolution is not achievable to lay the ground to enable litigation to proceed at a reasonable and proportionate cost, and to limit the matters in contention;
- to communicate promptly where any of the requested information is not available or does not exist;
- to discourage the prolonged pursuit of unmeritorious claims and the prolonged defence of meritorious claims;
- to encourage all parties, at the earliest possible stage, to disclose voluntarily any additional documents which will assist in resolving any issue;
- to promote the provision of medical or rehabilitation treatment in appropriate cases to address the needs of the claimant.
4 THE PROTOCOL
This protocol is not a comprehensive code governing all the steps in disease claims. Rather it attempts to set out a code of good practice which parties should follow.
This protocol must be read in conjunction with the Practice Direction on Pre-Action Conduct.
OBTAINING OCCUPATIONAL RECORDS INCLUDING HEALTH RECORDS
In appropriate cases, a potential claimant may request Occupational Records including Health Records and Personnel Records before sending a Letter of Claim.
Any request for records by the potential claimant or his adviser should provide sufficient information to alert the potential defendant or his insurer where a possible disease claim is being investigated; Annex A1 provides a suggested form for this purpose for use in cases arising from employment. Similar forms can be prepared and used in other situations.
The copy records should be provided within a maximum of 40 days of the request at no cost. Although these will primarily be occupational records, it will be good practice for a potential defendant to disclose product data documents identified by a potential claimant at this stage which may resolve a causation issue.
Where the potential defendant or his insurer has difficulty in providing information quickly (in particular where the information is, or may be, held by someone else such as the Health and Safety Executive) details should be provided of steps being taken to resolve this problem together with a reasonable time estimate for doing so.
If the potential defendant or his insurer fails to provide the records including health records within 40 days and fails to comply with paragraph 4.4 above, the potential claimant or his adviser may then apply to the court for an order for pre-action disclosure. The Civil Procedure Rules make pre-action applications to the court easier. The court also has the power to impose costs sanctions for unreasonable delay in providing records.
If either the potential claimant or his adviser considers additional records are required from a third party, such as records from previous employers or GP and hospital records, in the first instance these should be requested by the potential claimant or their advisers. Third party record holders would be expected to co-operate. The Civil Procedure Rules enable parties to apply to the court for pre-action disclosure by third parties.
As soon as the records have been received and analysed, the potential claimant or his adviser should consider whether a claim should be made. GP and hospital records will normally be obtained before a decision is reached.
If a decision is made not to proceed further at this stage against a party identified as a potential defendant, the potential claimant or his adviser should notify that potential defendant in writing as soon as practicable.
6 LETTER OF CLAIM
Where a decision is made to make a claim, the claimant shall send to the proposed defendant two copies of a letter of claim, as soon as sufficient information is available to substantiate a realistic claim and before issues of quantum are addressed in detail. One copy is for the defendants, the second for passing on to his insurers.
This letter shall contain a clear summary of the facts on which the claim is based, including details of the illness or disease alleged, and the main allegations of fault. It shall also give details of present condition and prognosis. The financial loss incurred by the claimant should be outlined. Where the case is funded by a conditional fee agreement, notification should be given of the existence of the agreement and where appropriate, that there is a success fee and insurance premium, although not the level of the success fee or premium.
Where the funding arrangement is an insurance policy the party must state –
(1) the name and address of the insurer;
(2) the policy number;
(3) the date of the policy;
(4) the claim or claims to which it relates (including Part 20 claims if any);
(5) the level of cover; and
(6) whether the premiums are staged and if so the points at which the increased premiums are payable.
Solicitors are recommended to use a standard format for such a letter – an example is at Annex B: this can be amended to suit the particular case, for example, if the client has rehabilitation needs these can also be detailed in the letter.
A chronology of the relevant events (e.g. dates or periods of exposure) should be provided. In the case of alleged occupational disease an appropriate employment history should also be provided (with a work history from HM Revenue and Customs), particularly if the claimant has been employed by a number of different employers and the illness in question has a long latency period. Where there is more than one employer the chronology should state if there was any relevant exposure during each of those different periods of employment. Details should also be given about any periods of self-employment during which there was any relevant exposure and whether any claims have been made and payments received under the Pneumoconiosis etc (Workers' Compensation) Act 1979.
The letter of claim should identify any relevant documents, including health records not already in the defendant's possession e.g. any relevant GP and hospital records. These will need to be disclosed in confidence to the nominated insurance manager or solicitor representing the defendant following receipt of their letter of acknowledgement. Where the action is brought under the Law Reform Act 1934 or the Fatal Accidents Act 1976 then relevant documents will normally include copies of the death certificate, the post mortem report, the inquest depositions and if obtained by that date the grant of probate or letters of administration.
The letter of claim should indicate whether a claim is also being made against any other potential defendant and identify any known insurer involved. Copies of any relevant result from the Association of British Insurers Employers’ Liability Tracing Service, both positive and negative, should be attached to the letter of claim. If the claimant receives any insurance database results after sending the letter of claim those results should be forwarded to the defendant as soon as is reasonably practicable.
Sufficient information should be given to enable the defendant's insurer/solicitor to commence investigations and at least to put a broad valuation on the ‘risk’.
It is not a requirement for the claimant to provide medical evidence with the letter of claim, but the claimant may choose to do so in very many cases.
Letters of claim and response are not intended to have the same status as a statement of case in proceedings. Matters may come to light as a result of investigation after the letter of claim has been sent, or after the defendant has responded, particularly if disclosure of documents takes place outside the recommended 90 day period. These circumstances could mean that the ‘pleaded’ case of one or both parties is presented slightly differently than in the letter of claim or response. It would not be consistent with the spirit of the protocol for a party to ‘take a point’ on this in the proceedings, provided that there was no obvious intention by the party who changed their position to mislead the other party.
Proceedings should not be issued until after 90 days from the date of acknowledgement (see paragraph 7), unless there is a limitation problem and/or the claimant's position needs to be protected by early issue. (See paragraphs 2.6 and 2.7)
7 THE RESPONSE
The defendant should send an acknowledgement within 21 days of the date of posting of the letter of claim, identifying the liability insurer (if any) who will be dealing with the matter and, if necessary, identifying specifically any significant omissions from the Letter of Claim. If there has been no acknowledgement by the defendant or insurer within 21 days, the claimant will be entitled to issue proceedings.
The identity of all relevant insurers, if more than one, should be notified to the claimant by the insurer identified in the acknowledgement letter, within 30 days of the date of that acknowledgement. For claims with a long latency period it is recognised that it may not be possible to identify the full insurance history within 30 days. In these circumstances the insurer or defendant should notify the claimant in writing as soon as possible. In any event, within 30 days the insurer or the defendant should state which other insurers have been identified. Where insurers have not been identified the defendant or insurer should state what steps have been taken to determine this information.
The defendant or his representative should, within 90 days of the date of the acknowledgement letter, provide a reasoned answer: –
- if the claim is admitted, they should say so in clear terms;
- if only part of the claim is admitted they should make clear which issues of fault and/or causation and/or limitation are admitted and which remain in issue and why;
- if the claim is not admitted in full, they should explain why and should, for example, include comments on the employment status of the claimant, (including job description(s) and details of the department(s) where the claimant worked), the allegations of fault, causation and of limitation, and if a synopsis or chronology of relevant events has been provided and is disputed, their version of those events;
- if the claim is not admitted in full, the defendant should enclose with his letter of reply documents in his possession which are material to the issues between the parties and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings. Reference can be made to the documents annexed to the personal injury protocol.
- where more than one defendant receives a letter of claim, the timetable will be activated for each defendant by the date on the letter of claim addressed to them. If any defendant wishes to extend the timetable because the number of defendants will cause complications, they should seek agreement to a different timetable as soon as possible.
If the parties reach agreement on liability and/or causation, but time is needed to resolve other issues including the value of the claim, they should aim to agree a reasonable period.
Where it is not practicable for the defendant to complete his investigations within 90 days, the defendant should indicate the difficulties and outline the further time needed. Any request for an extension of time should be made, with reasons, as soon as the defendant becomes aware that an extension is needed and normally before the 90 day period has expired. Such an extension of time should be agreed in circumstances where reasonable justification has been shown. Lapse of many years since the circumstances giving rise to the claim does not, by itself, constitute reasonable justification for further time.
Where the relevant negligence occurred outside England and Wales and/or where the defendant is outside the jurisdiction, the time periods of 21 days and 90 days should normally be extended up to 42 days and 180 days.
8 SPECIAL DAMAGES
The claimant will send to the defendant as soon as practicable a Schedule of Special Damages with supporting documents, particularly where the defendant has admitted liability.
In disease claims expert opinions may be needed on one or more of the following –
- knowledge, fault, causation and apportionment;
- condition and prognosis;
- valuing aspects of the claim.
The civil justice reforms and the Civil Procedure Rules encourage economy in the use of experts and a less adversarial expert culture. It is recognised that in disease claims, the parties and their advisers will require flexibility in their approach to expert evidence. Decisions on whether experts might be instructed jointly, and on whether reports might be disclosed sequentially or by exchange, should rest with the parties and their advisers. Sharing expert evidence may be appropriate on various issues including those relating to the value of the claim. However, this protocol does not attempt to be prescriptive on issues in relation to expert evidence.
Obtaining expert evidence will often be an expensive step and may take time, especially in specialised areas where there are limited numbers of suitable experts. Claimants, defendants and their advisers, will therefore need to consider carefully how best to obtain any necessary expert help quickly and cost-effectively.
The protocol recognises that a flexible approach must be adopted in the obtaining of medical reports in claims of this type. There will be very many occasions where the claimant will need to obtain a medical report before writing the letter of claim. In such cases the defendant will be entitled to obtain their own medical report. In some other instances it may be more appropriate to send the letter of claim before the medical report is obtained. Defendants will usually need to see a medical report before they can reach a view on causation.
Where the parties agree the nomination of a single expert is appropriate, before any party instructs an expert he should give the other party a list of the name(s) of one or more experts in the relevant speciality whom he considers are suitable to instruct. The parties are encouraged to agree the instruction of a single expert to deal with discrete areas such as cost of care.
Within 14 days the other party may indicate an objection to one or more of the named experts. The first party should then instruct a mutually acceptable expert. If the Claimant nominates an expert in the original letter of claim, the 14 days is in addition to the 21 days in paragraph 7.1.
If the second party objects to all the listed experts, the parties may then instruct experts of their own choice. It would be for the court to decide subsequently, if proceedings are issued, whether either party had acted unreasonably.
If the second party does not object to an expert nominated, he shall not be entitled to rely on his own expert evidence within that particular speciality unless:
- the first party agrees,
- the court so directs, or
- the first party's expert report has been amended and the first party is not prepared to disclose the original report.
Either party may send to an agreed expert written questions on the report, relevant to the issues, via the first party's solicitors. The expert should send answers to the questions separately and directly to each party.
The cost of a report from an agreed expert will usually be paid by the instructing first party: the costs of the expert replying to questions will usually be borne by the party which asks the questions.
Where the defendant admits liability in whole or in part, before proceedings are issued, any medical report obtained under this protocol which the claimant relies upon, should be disclosed to the other party.
Where the defendant obtains a medical report on which he seeks to rely this should be disclosed to the claimant.
For further guidance see Part 35 of the CPR, Practice Direction 35 and the Protocol for the Instruction of Experts to give Evidence in Civil Claims which is annexed to that Practice Direction.
10 RESOLUTION OF ISSUES
The Civil Procedure Rules Part 36 enable claimants and defendants to make formal offers to settle before proceedings are started. Parties should consider making such an offer, since to do so often leads to settlement. If such an offer is made, the party making the offer must always supply sufficient evidence and/or information to enable the offer to be properly considered.
Where a claim is not resolved when the protocol has been followed, the parties might wish to carry out a ‘stocktake’ of the issues in dispute, and the evidence that the court is likely to need to decide those issues, before proceedings are started.
Prior to proceedings it will be usual for all parties to disclose those expert reports relating to liability and causation upon which they propose to rely.
The claimant should delay issuing proceedings for 21 days from disclosure of reports to enable the parties to consider whether the claim is capable of settlement.
Where the defendant is insured and the pre-action steps have been conducted by the insurer, the insurer would normally be expected to nominate solicitors to accept service of proceedings and the claimant's solicitor is recommended to invite the insurer to nominate solicitors to accept service of proceedings and to do so 7-14 days before the intended issue date.
If by reason of complying with any part of this protocol a claimant's claim may be time-barred under any provision of the Limitation Act 1980, or any other legislation which imposes a time limit for bringing an action, the claimant may commence proceedings without complying with this protocol. In such circumstances, a claimant who commences proceedings without complying with all, or any part, of this protocol may apply to the court on notice for directions as to the timetable and form of procedure to be adopted, at the same time as he requests the court to issue proceedings. The court will consider whether to order a stay of the whole or part of the proceedings pending compliance with this protocol.
Annex A1 APPLICATION ON BEHALF OF A POTENTIAL CLAIMANT FOR USE WHERE A DISEASE CLAIM IS BEING INVESTIGATED
Annex C GUIDANCE FOR CASES INVOLVING MESOTHELIOMA – EARLY NOTIFICATION LETTER
The purpose of the early notification letter is twofold. First, the intention is to give defendants and their insurers as much advance warning as possible about the possibility of a claim so that they can begin to investigate the matter. This is particularly so where relevant information may be decades old and may take time to locate and retrieve. Second, where the claimant has severely limited life expectancy it gives advance warning to defendants of the need for urgency in locating relevant information.
It is intended that the early notification letter will be sent before the letter of claim and will not start the timetable for response as set out in paragraph 7 of this protocol.
As soon as sufficient information is available to identify a proposed defendant, the claimant should send to the proposed defendant two copies of the early notification letter. One copy is for the defendant, the second for passing on to the defendant’s insurers. The claimant should also send a further copy of the same letter directly to the defendant’s insurer, where known. In the case of a defunct company the further copy of the letter should be sent to the relevant insurer or handler of that defunct company.
Content of Early Notification Letter
All copies of the early notification letter should be clearly marked ‘MESOTHELIOMA CLAIM’.
The early notification letter should contain basic information sufficient to identify the claimant, the periods of relevant exposure and the potential defendants. As a minimum, the early notification letter should contain the following information:
(a) name and address of the claimant/deceased;
(b) national insurance number of the claimant/deceased (if known);
(c) claimant/deceased's date of birth;
(d) employers, where known, of relevant employment and or exposure;
(e) occupiers of premises, where known, of relevant employment and/or exposure;
(f) date or approximate dates, where known, of relevant employment and or exposure;
(g) direct contact details, including e-mail address, for the claimant's legal representative;
(h) marital status;
(i) details of dependents; and
(j) date of diagnosis.
Solicitors are recommended to use a standard format for the early notification letter. An example is set out in Annex D. This can be amended to suit the particular case.
The early notification letter should indicate whether a claim is also being made against any other potential defendant and identify any known insurer involved.
The early notification letter is not intended to have the same status as a statement of case in proceedings. Matters may come to light as a result of investigation after the letter of claim has been sent.
Employment and Exposure History
In view of the joint and several liability provided for in the Compensation Act 2006 in mesothelioma cases the information set out in paragraph 6.5 of this protocol is particularly relevant.
The defendant should respond within 14 days of the date of the letter confirming that the matter is receiving urgent attention.
Compliance with this protocol
Attention is drawn to paragraph 9.1 of Practice Direction 3D (Mesothelioma Claims) which provides that in Living Mesothelioma Claims (normally where the claimant has severely limited life expectancy) strict adherence to this protocol may not be required. The issue of compliance with this protocol in relation to certain mesothelioma claims is also recognised at paragraph 2.7 of this protocol.
Annex D EARLY NOTIFICATION LETTER FOR USE IN CASES INVOLVING MESOTHELIOMA
URGENT – MESOTHELIOMA CLAIM
YOU MUST DEAL WITH THIS LETTER IMMEDIATELY
We are acting on behalf of the above-named who has developed mesothelioma. We are investigating whether this disease may have been caused:
during the course of his employment with you / name of employer if different whilst at your premises at (address)
between the approximate dates of: (insert relevant dates of employment/at the premises)
as a result of your product (name)
Please note your insurers will require you to advise them of this letter. You must pass a copy of this letter to your insurer immediately.
We are writing this letter in accordance with the Pre-Action Protocol for Disease and Illness Claims.
Our client’s details are as follows:Name:
National Insurance Number (if known):
Date of Birth:
Details of dependents:
Date of diagnosis.
We require a response from you confirming this matter is receiving urgent attention within 14 days of the date of this letter.
The direct e-mail address, which you may use for urgent communications and which should be followed up with paper copies, is: (insert e-mail address)