Court in a trap

Defendants must move quickly to deflect potentially costly, and increasingly common, pre-action disclosures traps. As John Haynes explains, taking tactical steps can minimise any damage

While slow to get off the mark, claimant solicitors now recognise the benefits of utilising applications for pre-action disclosure and see it as a valuable tool. Although the Civil Procedure Rules were introduced in 1999, laying down strict personal injury protocols, it is only relatively recently that claimant solicitors have begun rushing to court with applications.

And insurers are likely to see this number significantly increase, which will prove costly for defendants - unless they take swift action.

Not only does such an application usually mean that a claimant's solicitor will obtain additional costs - which would not have otherwise been recovered - it also puts pressure on the defendant to complete liability investigations.

There is even a suspicion that some claimants' solicitors are pursuing applications where they have no hope of success in the main action, relying upon the potential defendant's default to generate income on a case that would otherwise not produce income.

The use of these applications has become tactical, so what tactics should defendants engage in in order to minimise the damage?

Dating game

The first crucial date for the defendant is the expiry of the three-month period allowed by the protocol to investigate, following receipt of the letter of claim. If liability investigations are under way, but there are good reasons these have not been completed, a letter can be sent to the claimant's solicitors explaining what has caused the delay in the investigation and asking for a formal agreement to a time extension. A lack of action on the part of the defendant is unlikely to be a good reason.

It would be worthwhile in any case, where either no decision has been conveyed to the claimant's solicitors in respect of liability or liability is denied without supporting documentation, to release a standard letter to the claimant's solicitors asking for 21 days' notice of an intention to issue any application for pre-action disclosure. This has the advantage of placing the defendant on notice that there will be such an application and allows them to identify cases that will need to be urgently investigated.

The only real way of preventing an application of this nature, however, is to ensure that liability investigations are completed within the period specified by the protocol.

If liability is not to be contested, then it needs to be admitted in time. This may not entirely absolve the defendant of responsibilities for disclosure - particularly in an employers' liability case where loss of earnings information may be needed - but the claimant's solicitors are unlikely to make an application for pre-action disclosure purely in respect of loss of earnings, unless there is substantial default on the part of the defendant in providing such information.

In reality, it is quite common for there to be a simple denial of liability.

This may be effective in removing a number of cases that are not then pursued by claimant solicitors but leaves the defendant open to an application for pre-action disclosure. The defendant should not issue a simple denial unless there is justification and, more importantly, documentation to support it.

It is always best practice when issuing a denial to disclose such discoverable documentation as is available and if the claimant's solicitors have requested a document or classes of document, which are not available, the claimant needs to be notified that these are not available and the reasons for the same.

Usually, an application such as this results in an order for costs for the claimant. Very often this is because the claimant's solicitors can show that, following the letter of claim, an inadequate response was received.

For example, if the defendants were allowed the opportunity of remedying the position and did not seize it. The court will consider this to be unreasonable conduct and is likely to award the claimant's solicitors costs. Costs will invariably be assessed and payable within 14 days.

It is possible to defend an application for disclosure but this invariably relies on errors on the part of the claimant's solicitors - either in issuing the application prematurely, failing to serve it correctly or in failing to draft the application correctly.

If the claimant issues the application too early it is possible to argue that they have acted prematurely and unreasonably. In such a case, there are good grounds for the defendant receiving their costs, both of an application and of complying with any order for disclosure.

Typically, however, there will be one, two or three reminders following the letter of claim before the claimant's solicitors will release an application.

In such a case they will probably receive costs unless it can be proved that the application was in some way flawed.

There is often a lack of care taken in drafting these applications. The application may seek documentation that is not relevant to the issues of the defence. The application may be nothing more than a fishing expedition seeking a long list of documents, some of which may not actually be documents at all (witness statements, for example); some may merely be a request for information rather than documentation; and some may be seeking documents appearing to have leapt from the imagination of the claimant's solicitor when drafting the application.

Procedural errors in respect of service may condemn the application to failure. If the application is flawed, the court can strike it out and/or award the defendant costs.

The attitude of the court varies depending on which district judge considers the application. If there are minor flaws within the application and there is significant fault on the part of the defendant in failing to reply to earlier reasonable requests for disclosure, then the court is unlikely to strike out the claimant's application. If the application is deeply flawed, even if there has been default by the defendant, there is a good chance of striking it out or, if the application is partly successful, in ensuring there is no order for costs.

The way forward

In summary, possible defences against such applications invariably rely upon errors on the part of the claimant's solicitors either in issuing the application prematurely or in failing to draft the application correctly.

And with the number of such applications likely to significantly increase going forward, defendants must ensure that any need to issue is minimised by complying with protocol time limits or any agreed extension, making sure that any denial of liability has a realistic prospect of success, is sustainable and is properly supported by documentation.

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