Date:  20 April 2009

DISCLOSURE IN PERSONAL INJURY CLAIMS

Many claimants’ solicitors issue PADs as a matter of course.

What are they and why are they often easy money for them?

PADs full title is a Pre action Disclosure Application for documents.  They arise in claims for personal injury and are normally issued against the claimant’s employer.

The rules for disclosure of documents are governed by the CPR Part 31 and the allied Practice Direction plus the Pre-action Protocol for Personal Injury claims.

As the protocol says, the purpose is, amongst other things, the better and earlier exchange of information between the parties, thus enabling more contact and better pre-action investigation by both sides leading to cases being settled fairly and early without the need for litigation.

The reality however is that the exchange is one sided. The claimant’s solicitors issue their pre-action letter of claim and at the same time request disclosure of the relevant documents. The request is often wide ranging and asks for all the documents listed in

Section B of the Protocol

Section B is in fact divided into a number of sections: RTA cases, highway tripping claims and workplace claims.

The workplace claims are further subdivided into sections A to M.

To avoid disclosure and the work it entails in collating the documents, the answer is a prompt admission of liability.  Often this does not take place and hence the application is made to which there is generally no answer. The Court makes the Order together with an award of costs. An easy exercise for the claimant’s solicitors even with a case where the chances of success on liability are remote!

How can the applications be avoided or successfully defended?

The answer is prompt investigations with an early admission of liability or if liability is going to be denied, or contributory negligence alleged, disclosure of ALL the relevant documents.

Unfortunately this is an area where problems arise and gives cause to the applications. The reason is that the disclosure given is often limited to the accident book or report to the HSE rather than the full disclosure required by the protocol. Documents such as risk assessments pre and post accident are often not sent. In a number of cases it is because although they should exist, they do not and the claimants’solicitors are never told. Why are they not told? Often because telling them may be considered a weakness in the Defendant’s case. Better to be up front and explain what has been disclosed and the reason why other documents have not and avoid the costs of an application.

If you are having difficulties in investigating there is no harm done in asking for an extension of time from the claimants’ solicitors and generally it will be given. Often the Application is issued to obtain a response to the claim.

Buller Jeffries are frequently instructed on PADs and aim to resolve them as quickly and cheaply as possible, often achieving a reduction in the classes of documents to which the claimant may be entitled and a significant saving on the claimant’s solicitors’ costs.

Albert Powell