On 6 February 2023, the Lady Chief Justice introduced a new Pre-Action Protocol for Personal Injury and Damage Only RTA Actions (the Protocol) for such actions that are litigated in the County Court only.
The Protocol introduces a number of changes, particularly on the exchange of information from the plaintiff to the defendant’s insurer in relation to personal injury and credit hire claims.
For a number of years, Pre-Action Protocols have existed in Northern Ireland in order to encourage best practice in respect of pre-proceedings conduct between a plaintiff and a defendant.
Guidance for pre-action conduct in these actions was previously set out in the Pre-Action Protocol for Personal Injury and Damage Only RTA Actions from February 2013, along with the Pre-Action Protocol for Personal Injury Actions from 2008. Whilst the 2008 Protocol directed plaintiff representatives to take certain steps on receipt of an admission of liability (i.e. provide medical evidence), the 2013 Protocol did not make any similar requirement in respect of claims involving credit hire, credit repairs, storage & recovery charges and other types of special loss.
Within that context, some plaintiff firms (frequently those representing large accident management companies) were issuing County Court proceedings on a regular basis without the reasonable exchange of information with the defendant/their insurer. Arguably, many thousands of these cases could have been resolved prior to proceedings being issued had the defendant/their insurer been provided with the relevant information.
Against this background, defence practices in Northern Ireland, including Kennedys, collaborated with the Forum for Insurance Lawyers (FOIL) and canvassed for change in relation to the pre-action guidance. This drive for change led to many proposals, including the fair exchange of relevant information in credit hire cases, being drafted in 2021 and 2022 which formed the basis of the Protocol now introduced.
The Protocol – what’s new?
The Protocol sets out specific directions for damages only claims where a plaintiff is expected to comply in advance of pursuing litigation. This has significantly enhanced the information that a plaintiff is required to share with the defendant/insurer.
The Protocol indicates that the plaintiff must disclose the following from when they serve a letter of claim:
- The details of heads of claim to be presented, if available.
- A plaintiff’s impecuniosity position if ascertainable.
- Details of whether the vehicle is roadworthy or drivable.
- The plaintiff’s occupation, if relevant. For example, if the plaintiff uses their vehicle as a taxi or primarily for business purposes.
When liability has been admitted, there are categories of information a plaintiff must disclose if they are seeking the cost of credit hire and/or the cost of credit repairs. For example, they are required to provide the hire invoice and hire agreements, all relevant invoices for repair, storage, recovery and depreciation. Further, they must confirm the details of any additional drivers, and other details relating to their licence, any penalty points and the purposes of the use of a hire vehicle.
In addition, the plaintiff is required to give specific dates in respect of when an engineer is instructed, when they inspect the vehicle, when the report is completed, the dates when hire started and ended, and confirmation of a plaintiff’s VAT status. A plaintiff is also required to give a number of financials in respect of any claim for impecuniosity (for example, bank statements, credit union savings statements, details of earnings, debts/loans, etc.).
The changes introduced by the Protocol are certainly a welcome step in the right direction insofar as the fair and transparent exchange of information is concerned. Too often, defendants and their insurers find themselves in a frustrating position where they are not privy to the information required in order to try and resolve matters at an early stage in a liability-admitted case. In the majority of cases, this information will be within the knowledge of the plaintiff or any accident management company assisting them. The fact that the Lady Chief Justice has signed off on the Protocol shows an awareness of these issues across the judiciary in Northern Ireland.
Notwithstanding this positive change, the Protocol remains guidance that is not strictly enforceable. There is no statutory obligation to comply with the Protocol, nor is the obligation underpinned by sanctions which the County Court could impose in the event that any party that does not comply with the Protocol. This would require an amendment to the County Court Rules (Northern Ireland) 1981. We suspect that the reason for not imposing such a measure is that representatives in Northern Ireland are entrusted to use their best efforts to try and deal with these cases as efficiently and effectively as is reasonably possible. Whether or not further changes will be required will depend on the level of compliance with the Protocol and this remains to be seen.
From our perspective, the new Protocol improves the situation for pre-action personal injury/credit hire cases that are within the County Court’s jurisdiction. Assuming that representatives share proper details from the outset of a claim, this should lead to an increase in pre-action settlements and a natural decrease in personal injury/credit hire cases being litigated.