Stage 2 Settlement Packs in low value personal injury claims - The importance of getting your ducks in a row

The recent case of Wickes Building Supplies Ltd v Blair 2019 raised the issue of attempting to rely on evidence not previously adduced within the relevant period set out in the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims.In this case, the claimant (Blair), had brought a claim against the defendant (Wickes) via the low value personal injury claims protocol.  Liability was admitted and the claim proceeded through the portal.  The claimant completed a stage 2 settlement pack setting out his claim.  Agreement could not be reached and the claim proceeded to a stage 3 hearing.  At the hearing the claimant attempted to adduce a witness statement, not previously relied upon, in support of his claim.  The defendant asserted that the witness statement was not served in accordance with the protocol and should not be considered by the court.  The court agreed with the defendant and proceeded to award damages to the claimant without consideration of the witness statement.Although this claim was appealed firstly by the claimant and then subsequently by the defendant, those appeals did not relate directly to the adducing of evidence late in proceedings and this article does not consider those issues further.Wickes serves as a timely reminder that courts will proceed with stage 3 claims with no consideration of any further evidence that either party attempts to adduce outside of the protocol period, whether it be for EL/PL claims or those arising from an RTA.The claimant must send to the defendant a stage 2 settlement pack detailing all heads of claims with medical evidence and pecuniary losses.  The defendant, when making a counter-offer must propose an amount for each head of damage.  The defendant must also explain in the counter-offer why a particular head of damage has been reduced.  If the defendant is unable to succinctly provide a full explanation for the dispute in the limited space given, any additional pages, or separate letter detailing this should be referred to and also attached to the response to stage 2 settlement pack.  It may not be adequate to simply refer to correspondence sent to the claimant, if a copy is not attached to the online settlement pack.Similarly if the defendant has any documentation to support a counter-offer, this must be attached to the settlement pack to ensure it is considered by the court.We recognise the importance of complying with the provisions of the Protocols in relation to settlement packs. By way of example, we are dealing with claims brought in the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents that include claims for credit hire.  Often the claimant will not volunteer whether they have need for the hire vehicle or whether they are impecunious.  This is vital information that every defendant insurer dealing with a credit hire claim in the stage 2 process must request upon receipt of the settlement pack.  If this is not raised during the protocol period, the defendant will not be able to adduce any evidence disputing either the need to use credit hire or the rates at the stage 3 hearing.  If the claimant does not provide evidence of need or impecuniosity and the defendant wishes to dispute the credit hire, evidence, in the form of a short survey or witness statement of basic hire rates, should be obtained and attached to the online settlement pack.At the conclusion of the protocol “negotiation” period if settlement is not reached, the claimant will submit a Court Proceedings Pack. This must not raise anything that has not been raised in the stage 2 settlement pack.  If the claimant does not comply and has attempted to raise new evidence, the defendant must respond within the period set out in the protocol setting out the non-compliance.In summary, it is essential to get all your ducks in a row. Our experience is that you should not expect to rely on any document or argument at a stage 3 hearing that you have not raised during the negotiation period and you should be alive to contesting any evidence adduced late by the other party. Wickes highlights the importance of this.