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.
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