The personal injury pre-action protocol requires employers and companies to disclose various documents relating to accident reporting and investigation, risk assessments and training in claims from employees or members of the public where liability is denied.

Alison Wright, paralegal in the workplace safety team, Weightmans:

Claimant solicitors have recognised pre-action disclosure can be a quick and easy method of recovering costs. Further, companies are not taking their legal obligations seriously enough.

Once a letter of claim is received it should be acknowledged within 21 days. Thereafter you have three months to reach a decision on liability. If liability is denied the reasons must be given and the following documents, where relevant, disclosed at the same time. This list is not comprehensive:

• Accident report/investigation
• Risk assessments
• Training records
• Maintenance/cleaning records
• Correspondence with HSE/council

By not investigating a matter within the three-month period the respondent does not have the opportunity to avoid an application and consequent order for the documents to be provided and costs. If liability is to be admitted, the respondent should not wait for the protocol period to come to an end; this ensures applications for disclosure can be avoided, the possibility of an early settlement is achievable and ultimately costs saved.

Similarly if the investigation provides the respondent with a denial of liability, they should disclose relevant documents and set out the basis of the denial.

Obviously delays are possible, if not inevitable, when trying to trace documents. Communicating with the claimant’s solicitors will buy time and reassure them that their requests are being taken seriously.
 
Some of the documents requested may not be available or have never existed. This will not necessarily be a problem as long as the claimant’s solicitor is aware that this is the reason for non-disclosure. Writing letters explaining the delay, providing some of the documents and asking for extensions of time to do so are all easy ways of avoiding a costly application.

• Acknowledge all letters of claim within 21 days.

• Initiate an immediate investigation gathering all documents that may be relevant.

• If during investigation you believe you are liable inform your broker/insurer immediately.

• Should the process become delayed, inform the claimant’s solicitors, disclosing what documents you have and requesting realistic extensions of time.

• Within the protocol period ensure communication is maintained with the claimant’s solicitors.

• Before the protocol period ends provide all relevant information to your broker/insurer so that they can communicate with the claimant’s solicitors if liability is denied setting out the reasons and providing documents explaining those that do not exist or can no longer be traced.

All of this must be done in conjunction with your broker/insurer or in-house insurance team.

Some of this may seem obvious but the issues set out here are the main reasons applications for disclosure are made. If respondents follow the basic steps, the number of claimant’s solicitors making such applications will decrease dramatically.

Following these steps will mean the respondent should be able to defend an application on the grounds it has been brought unreasonably and rightly expect to recover their costs.