Applications for pre-action disclosure can be common in personal injury claims where a party (most often the Claimant) seeks specific information from the opposing party (the Defendant).
If you have received a pre-action disclosure application ('PAD') in relation to a personal injury that has been alleged against you or your business, usually your insurer will be dealing with the claim and so will have appointed legal representation. Your solicitors should therefore respond on your behalf to comply with the process.
However, if you do not have insurance to cover the claim or solicitors acting for you, it is important to understand the basis for the application and respond as soon as possible.
Pre-Action Disclosure Application on a Personal Injury Claim.
PAD's are usually issued by a Claimant's solicitor when the Defendant has been unresponsive or has refused to provide information that has been requested.
A solicitor acting for a Claimant can request copies of all relevant information relating to the alleged incident that led to the injury that the Defendant possesses or that is in their control. This information is then used to assist them in evaluating the prospects and liability of any claim.
The legal basis and procedure for the disclosure of documents is detailed in section 7 of the Pre-Action Protocol for Personal Injury Claims and section 31.16 of the Civil Procedure Rules.
Depending on the type of claim (accident at work, dog bite etc.) the evidence that can reasonably requested may include:
A PAD should not be the first correspondence you will receive regarding a claim, as a Letter of Claim or Claim Notification Form is usually sent beforehand. This will have detailed the specific allegations of the claim and often requests that the additional information is provided or at least preserved (i.e., CCTV footage not be deleted).
If this information isn’t forthcoming, then the Claimant's solicitor may write again threatening an application for pre-action disclosure and putting you on notice that you will be liable for the costs incurred if an application must be made to the Court.
You should seek legal advice as soon as possible to comply with the request and to avoid having to pay these additional costs.
What is included in a Pre-Action Disclosure Application?
When a PAD is made, the documentation you receive can consist of the Application Notice, a Witness Statement, Order/Draft Order, copies of previous disclosure requests, and sometimes a notification to attend a hearing.
The Witness Statement will detail the attempts the Claimant's legal representatives have made to obtain the documents, the exact documents that are being requested and why these should be disclosed.
The Order (or Draft Order) will state what timeframe the documents should be provided in and the costs the Claimant is now entitled to receive from you as a result of having to make the application.
Responding to a Pre-Action Disclosure Application?
It is advisable to obtain legal advice to deal with the threat of a PAD or the application itself. It is a formal legal document that has been made to the Court and should be treated seriously.
A Defendant personal injury solicitor will then be able to advise on the validity of the application, assist in complying with the Order and arrange representation at any application hearing (should one be required).
Failure to fully comply or respond to the application and subsequent Order can result in the Claimant's solicitor seeking a Penal Notice, which warns a Defendant that they may face further sanctions which could be as serious as imprisonment or other punishment that is permitted under the law.
As a responsible dog owner, receiving notification that someone is pursuing a compensation claim against you after being bitten by your dog can be a shock.
UK research indicates that one in four people have been bitten by a dog in their lifetime, with a third of bites requiring medical attention but only 0.6% requiring hospital attendance. So, while being seriously injured by a dog is relatively rare, any injury to a human which involves your pet will still be a cause for concern.
What happens if my dog bites someone?
In the immediate aftermath of a bite or attack, the police often become involved to assess if your animal is dangerous or could be considered out of control. The outcome of this investigation could be a warning, fine, banning order or even prison sentence in the most serious of cases.
But regardless of any action the police may take in a criminal capacity, you may still be subjected to civil legal proceedings in the form of a compensation claim made by the injured party.
If this occurs then you'll need to be aware of the options available in defending a dog related personal injury claim, and that you cannot always be held legally responsible for injuries that have been caused by your pet.
Insurance covering dog bite claims.
Does home insurance cover dog bites?
There are various insurance policies which you may have in place that can cover you in the event that a personal injury claim is made against you as a dog owner. Whether you dog bit someone on your property or in a public place (street, park, woods etc.)
Should you receive a claim, it's recommended to first check for any possible insurance policy, and if cover exists, report the claim to your insurer as soon as possible. They will then take over the handling of the claim and instruct a solicitor to act on your behalf.
Dog bite claim with no insurance
If no insurance cover exists, or your insurer refuses to indemnify you, then you need to seek advice from a personal injury defence lawyer on your uninsured dog bite claim.
The Letter of Claim you receive informing you of the claim will need to be acknowledged in a certain timeframe (usually 21 days) so gaining legal advice as soon as this letter is received is highly recommended.
Dog bites and the law.
For a claimant to be successful in their damages claim they must prove that the owner or keeper was responsible for the actions of the animal, and/or have been negligent in some way.
The Animals Act
A key piece of law that is often cited in animal attack cases is the Animals Act 1971. This legislation defines the conditions that a dog’s keeper can be responsible for the behaviour and damage caused by their dog.
The act provides three tests that must be met before the owner or person in possession of the animal can be held liable for any damage that has been caused. Basically, these tests are that:
a. The damage or injury was likely to be caused by the animal unless it was restrained, and
b. It was caused by a characteristic of the animal, and
c. The characteristic was known to the owner or keeper of the animal.
While any dog has the ability to bite, they will generally only ever do this in unusual circumstances which may not be able to be reasonably foreseen by the keeper.
Proving negligence in dog bite cases
Being the owner or handler of a dog, you owe the public and any visitors to your home a 'duty of care' to prevent the animal from injuring them. If a claimant can prove that an owner has breached this duty, and so has been negligent, then they may be entitled to compensation.
A person simply being bitten by a dog does not mean that the owner has been negligent. A claimant would need to show that they were aware that the dog attack could happen and failed to take adequate steps to prevent it.
Defences to a dog bite injury.
As you have probably gathered, defending a dog bite compensation claim is a complex task and you should obtain specialist legal advice when faced with a claim.
An experienced solicitor can investigate the circumstances of the incident, as well as the history of the animal, to present all mitigating factors on why you may not be liable for the injuries caused. For example, common dog bite law defences may include:
When it comes to the law, your beloved family pet is simply considered a piece of property that has inflicted damage on another person. So if you are placed in the position of defending a claim, ensure you seek the legal advice you need and your pet deserves.
Thanks to a bombardment of TV, radio and online advertising over the last few years, the general public are now well aware of their rights to claim compensation if they've been injured and believe that someone else is to blame.
If these claims are made against you, either by a member of the public, a customer or an employee, it can be a daunting prospect thinking about how to defend the allegations. Especially when you believe that the person's injury claim has little or no merit.
However there can be partial or full defences levelled against most personal injury (PI) claims. So it can be helpful to have a general awareness of the possible areas a solicitor may explore to defend the case against you to mitigate the costs of compensation.
Admitting or denying liability in an injury claim.
Firstly, when an injured person (the claimant) makes a compensation claim against a business or individual (the defendant) the question of liability must be considered. Liability is whether the defendant was legally responsible for the incident and the resulting injury, and can also be thought of as being at fault.
When a claim is made, a defendant can either:
If a defendant admits full liability, then the claim will come down to the amount of compensation the claimant is entitled to. This amount can still be disputed (i.e. claimant's expenses are not justified) or negotiated (early out of court settlement) to minimise the cost.
If the defendant denies liability or only admits being partially at fault, then a defence to the claim must be entered and there are several broad areas of defence that a solicitor can explore.
How to dispute a personal injury claim.
For the claimant to make a successful compensation claim they must prove:
The defendant had a legal duty of care towards the claimant
The defendant acted negligently so was responsible for the accident or incident
The claimant's sustained injuries were caused by the accident or incident
As a defendant you may dispute any of these facts, ranging from how the accident occurred to proving that the injuries and financial losses were not a direct result of the accident.
For example in cases such as a fall on business premises, a defendant may be able to produce CCTV or maintenance records to evidence that there were no hazards in the area and as such were not negligent in their actions.
A company's health and safety policies, procedures and training are often relied on heavily when defending a claim that has occurred at a public place or place of work. So ensuring these records are documented and up to date can be a key evidence in a defence.
Defence against personal injury claim.
No duty of care exists
Employers must ensure employees can conduct their work safely. Likewise the occupier of a building must ensure their environment is hazard free for customers or visitors. However not every relationship between two parties entitles one to a duty of care over the other.
For example, while an employer may owe their employees a duty of care whilst working, the same may not be true for two self-employed contractors.
In extreme cases the defendant may dispute the fact that the accident even occurred at all and allege that the claimant is acting fraudulently. If evidence supports this allegation then not only can a case be dismissed, but the claimant may find themselves prosecuted and found 'fundamentally dishonest' forcing them to pay a defendant's legal costs.
Alternatively, it may be accepted that there was an injury which was caused by the accident however the defendant may be able to obtain expert evidence to show the claimant is exaggerating their symptoms and losses.
While not a complete defence, contributory negligence is where the injured person is in some way at fault for the accident or incident which caused their injuries. So, while the defendant was partially to blame, so was the claimant.
For example, in road accident claims contributory negligence is often applied in cases where the injured person wasn't wearing a seatbelt. While the defendant may have caused the accident by colliding with the claimant, the injuries the claimant sustained were also partially due to their own negligence in not wearing a seatbelt. As such if the claimant was awarded £4,000 for their injuries but found to have been 25% to blame for contributing to them, only £3,000 would need to be paid by the defendant.
If contributory negligence can be proved, against the claimant or another involved party (e.g. the manufacturer of faulty equipment), it can have a dramatic effect on the final compensation amount awarded.
You may have heard stories about burglars being injured and attempting to sue the owners of a property for compensation. While this could hypothetically occur, a defence for this scenario would be that the claimant was injured whist committing a criminal act.
A defence of 'illegality' can be used where a person was involved in criminal activity at the time of the accident, such as in cases of unlawfully trespassing. In situations such as these the defendant would not have a duty of care towards the claimant and a claim would most likely fail.
Claim is out of time
Someone making an injury claim has three years from the date of the accident or incident to start formal court proceedings (issue a claim with the court). This three-year time limit however is not always straightforward as it may also start from the date the person first had knowledge of the injury which may be several years after the incident that caused it, such as in industrial decease cases. In the case of children, the three-year limitation period doesn't start until they become an adult on their 18th birthday, so a child injured at age 10 will have until they are 21 to lodge a claim.
These timeframes are dictated by the Limitation Act and if a claim is submitted outside the limitation period it can be very difficult for a claimant to show a valid reason why a claim wasn't submitted in the allowed timeframe. Therefore, often the claim may be dismissed regardless of the injury, circumstances or liability.
Contesting a personal injury claim.
A poorly defended compensation claim can cost you or your business thousands and in extreme cases result in its closure. While rigorously defending a lost cause is not likely to be cost effective, a thorough and carefully constructed defence can mitigate the compensation you are exposed to.
If you are fortunate enough to have relevant home, employer's liability or public liability insurance in place, then your insurance company may provide a solicitor to fight the PI claim on your behalf. Therefore, when you speak to them it's important to have an idea of what facts you dispute and evidence you can provide to support your case.
If you don't have valid insurance to cover a compensation claim, then it is critical to seek direct advice from defendant personal injury lawyers as soon as possible. Contesting a personal injury claim can be a complex task, but the sooner you seek advice the better your defence prospects will be.
Catalyst Law are team of legal professionals with over 20 years' experience helping businesses and people with their legal problems.
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