As soon as we agree to act for you in your case, we will look to correspond with the Defendant, or more commonly with their insurers, solicitors or representatives. Different types of cases are run in different ways. For example all road traffic accidents are submitted through a designated online portal. Most general claims where the date of the accident occurred after 31st July 2013 are also through a portal. There are some set rules or guidelines (in law known as protocols) which we must adhere to. Equally there are set rules and guidelines (set out in the specific protocol) which the Defendant should adhere to. If the Defendant fails to adhere to the protocol then we can take the necessary action.
Unfortunately it is not uncommon for the Defendant to either ignore our correspondence all together, perhaps in the hope that we will go away, or to be significantly delayed in their responses and in providing the necessary documentation/information. Basically if a claim is denied by a Defendant then the Defendant must provide documentary proof known as disclosure. Equally if the Defendant fails to respond at all then the protocol period (the period in which the Defendant is allowed to respond – usually 21 days plus 3 months following the letter of claim) will expire. When the protocol period expires (or when the initial 21 day period expires without acknowledgement) then the Claimant has a course of action.
If the Defendant is refusing to deal with the claim then we can look to make an application to Court for Pre-Action Disclosure. This is also known for short as a PAD application. We ask the Court to grant an Order forcing the Defendant to disclose certain documents. The Order may also ask that the Defendant provide a decision on liability. The Defendant will also usually be hit financially, by having to pay our costs in making the PAD application. Therefore it would seem better for the Defendant to co-operate and to respond. However we still have to make a number of PAD applications, they are quite common.
A PAD application is not a quick fix and it is usually better if we can progress the claim without having to make an application to the Court. However sometimes there is no alternative but to make a PAD application (such as if the Defendant is ignoring our correspondence or if the Defendant denied the claim without providing disclosure).
When we send the PAD application to Court it will be listed for a hearing. This normally takes place in a County Court. You are not required to attend. We usually book a barrister to attend on our behalf, this is normal practice. We (the Solicitors) prepare the application itself. This is a written application setting out the correspondence between the Claimant and the Defendant. Basically we have to justify our position that we are trying to move the claim forward but that the Defendant is not co-operating. We have to justify why we are making the PAD application.
If we make a PAD application without good reason, it could be struck out. This means that an Order will not be granted and effectively it has been a waste of time. Therefore we often warn the Defendant a couple of times and give the Defendant the opportunity to rectify the situation before we proceed to make an application for Pre-Action Disclosure.
We do have action available to us if the Defendant fails to respond to your claim.
