A new pre-action protocol has been introduced for all County Court claims involving personal injury or road traffic accident damage only claims in Northern Ireland. The protocol officially came into effect on the 6^th February 2023  and seeks to encourage more pre-action contact and aims to place Plaintiffs and Defendant insurers in a position where they can settle cases fairly and without litigation. Of particular importance for insurers will be the new obligations placed on Plaintiff’s representatives, to provide specific documentation and information in respect of credit hire or credit repair claims.

A copy of the protocol can be found here. 

Scope of the Protocol

The new protocol, updates the existing 2013 protocol, was produced following collaboration with Plaintiff and Defendant representatives of the Shadow Civil Justice Council committees and Civil Justice Advisory Board.  The protocol applies only to County Court claims, that is claims with an expected value of £30,000 or less.  Like its predecessor, the protocol provides a framework for the pre-action process for various stages from the issue of a letter of claim,  the Defendant’s admission or denial of liability and exchange of evidence to the point of settlement or the issue of legal proceedings.

Important Changes

The provisions of the new protocol will be welcomed by insurers and their representatives who have called for changes to the previous framework for many years. 

However, one important element of the new protocol remains unchanged from its predecessor: there are no specified cost penalties for non-compliance with its terms.  The imposition of cost penalties would have required amendments to the County Court Rules and it seems there was no appetite, at this point,  to proceed down this path.  

Instead, the protocol directs that the court will “treat the standards set out in this protocol as the normal reasonable approach of parties…...  The courts will expect the parties to have complied with this protocol before proceedings are issued.”

Alastair Ross, Head of Public Policy (Northern Ireland, Scotland and Wales), commenting on the new protocols, said: “The introduction of this Pre-Action Protocol is a welcome development and the ABI is pleased to have played its part in informing the Protocol through our work with Alison in her FOIL capacity on the shadow Civil Justice Council’s Advisory Group.

However, the benefit of the Protocol will be determined by its application and whether claimant solicitors play by the rules or choose to ignore them in the absence of any sanctions for non-compliance.

The costs associated with litigation in Northern Ireland put a direct inflationary pressure on premiums for motorists and so we need to see action on Pre-Actions Protocols and the other civil justice reforms proposed by Rt Hon Lord Justice Gillen in 2017 which are already five years old and counting.”

The main provisions of the protocol are as follows:

• The protocol aims to provide “more” pre-action contact as well as “better” exchange of information and investigation by both sides.

• Following receipt of a compliant pre-action protocol letter of claim, a Defendant still has 21 days to acknowledge receipt. Thereafter, in personal injury actions, a Defendant still has 3 months (6 months if the Defendant resides outside the jurisdiction) to investigate and determine liability. 

• However, in damage only road traffic accidents, the investigation period has been reduced from 3 months to 2 months (4 months if the Defendant resides outside the jurisdiction).

• A Defendant should now provide any allegations of fraud when advising a Plaintiff whether liability and causation are denied.

• Where liability is denied, a Defendant is still expected to provide discoverable documentation supporting this denial within the 2 / 3 month investigation period.

• Where liability is admitted, the defendant/insurer “will be bound by this admission”, with an exception only when there is subsequent evidence that the claim is fraudulent. It is difficult to envisage how this will be enforced in practice by the Courts without a correlating change to the County Court Rules.  Many will consider that this provision is unduly narrow and a more general provision should be included to allow a defendant to withdraw an admission on application to the court.

• Where a Defendant admits liability and causation, the Plaintiff’s solicitor should provide any medical evidence upon which they intend to rely and documents supporting any special loss claims. Previously, the requirement was restricted to only provide details of the alleged losses without any supporting medical evidence or documentation.

• The parties are encouraged to explore rehabilitation at an early stage and consider whether a form of ADR is more suitable than litigation in the event of a dispute.

Credit Hire / Repair Claims

Undoubtedly, the most positive changes to come from the new protocol are the new “standards” relating to the exchange of information specific to credit hire and credit repair claims, including:

• The Plaintiff’s letter of claim should include, if available, details of - the heads of claim; impecuniosity position; whether the vehicle is roadworthy; the Plaintiff’s occupation if relevant (e.g. taxi driver).
• Where liability is admitted, the protocol requires a Plaintiff to provide documentation and information specific to various scenarios, including:

Hire Claims:

• The repair invoice;
• Any depreciation report;
• The recovery agreement and invoice;
• The storage agreement and invoice;
• If the Plaintiff has transferred their own comprehensive insurance, they will provide temporary insurance invoices.
• The hire invoice and hire agreements.
• If they held a valid licence for 3 years prior to the accident.
• If they held any penalty points at the time of hire.
• Confirm if they needed to potentially travel outside of Northern Ireland.
• If the vehicle was required for purposes of taxiing, towing, or storing livestock.
• The details of additional drivers, their relationship to the Plaintiff, convictions, penalty points and length of time that additional driver has held a licence.
• The reasons for high-risk charges if applicable.

Credit Repair Claims

• The date that the Plaintiff’s engineer was instructed, inspected and completed their report
• Confirmation of the make, model, engine size, mileage of the Plaintiff s vehicle
• The expiry date of the MOT certificate;
• Whether the vehicle was roadworthy and driveable at inspection;
• A breakdown of hourly rate, hours spent, parts, paint/materials, specialist costs;
• A copy of the repair invoice;
• The Plaintiff will confirm the date on which they collected their vehicle if not the same date as the date the hire ended and whether the Plaintiff is registered for VAT.

Total Loss Claims

• Where the Plaintiff’s vehicle is a total loss and the process is dealt with by an accident management company, the Plaintiff will provide, if available, a copy of the engineer’s report which will include:
  • Dates the engineer was notified of the accident; inspection and report completion;
  • The date the PAV figure was received by Plaintiff or their representative;
  • Confirmation of the mileage at the date of accident;
  • A breakdown of the estimated hourly rate, hours spent, parts/paint/materials, any specialist costs and VAT;
  • The pre-accident value at date of accident, salvage value at the time of accident and the salvage category code;
  • Together with the engineer’s report, the Plaintiff’s representative will confirm the date the hire started and ended if that information is available;
  • Details of the salvage figure;

Impecuniosity

If the Claimant is relying on impecuniosity they will provide the following information if available: -

• Three months bank/building society statements;
• Three months credit union savings statements or the equivalent;
• The monthly cost of servicing any debts/loans;
• Details of outgoings at the time of the accident;
• Details of their earnings at the time of the accident; and if the Plaintiff’s earnings are not paid into a bank account, then 3 months’ pay slips can be provided.
  
  

Comment

The new protocol will be largely welcomed by insurers and should, if followed,  place the parties in a position where they have sufficient information to settle appropriate cases fairly and without litigation. Insurers will however be disappointed to note that the protocol does not allow for cost penalties for non-compliance of the standards or where pre-action offers are not beaten.  Nonetheless, this is a very positive step in the right direction particularly around the exchange of information and documentation pre-proceedings.

If you wish to discuss this further, please feel free to get in contact with our Casualty Team at DAC Beachcroft Claims Limited.