What happens if a defendant doesn't respond to a claim?

Defendants cannot just ignore claims in the hope that they will go away. Options are available if the defendant or their injury lawyer moves slowly or fails to respond to a claim.

One of the first steps your solicitor will take in your personal injury claim is sending a "letter of claim" to the defendant, either directly or through their solicitor or insurance company. The letter of claim sets out the basis of the claim and asks the defendant whether they admit liability for your injury.

Unfortunately, a defendant may chose to ignore the correspondence, either because they are burying their head in the sand or because they are trying to buy themselves some time before providing the necessary information or documents. If this happens, your solicitor can apply to the Court for an Order that forces the defendant to respond.

Time limits for responding to a personal injury claim

In the majority of cases, the defendant must:

  • acknowledge the letter of claim within 21 days; and
  • provide a full response within 3 months of the acknowledgement. The response must include certain documents, known as disclosure, if the defendant denies your claim.

If the defendant does not respond within these time limits, they will be in breach of the pre-action protocol for personal injury claims. Your solicitor is entitled to apply for a Court Order that will force the defendant to respond to your claim.

Making a Court application

The application your solicitor will make is called an application to Court for Pre-Action Disclosure, or a PAD application for short. After lodging the court papers, your solicitor or barrister will attend a Court hearing and must prove to the Judge that the defendant has materially failed to comply with pre-action protocols. You are not required to attend the hearing.

If the Court is satisfied that the defendant is not responding to your claim, it may grant a Court Order:

  • requiring the defendant to accept or deny liability; and
  • forcing the defendant to disclose the information and documents that are required to move the claim forward.

In most cases, the defendant will have to pay your legal costs in making the PAD application. This usually provides sufficient incentive for the defendant to co-operate and respond.

When a PAD application is not always the best course of action

Although you are entitled to issue a PAD application, this does not mean that you should. There may be mitigating circumstances as to why the defendant has not responded in accordance with pre-action protocols. If your solicitor makes a PAD application without good reason, the Court may strike it out.

Therefore, your solicitor may feel it is more appropriate to warn the defendant and give them an extension of the period they have to respond to the letter of claim, rather than issuing a PAD application straight away. As always, it is important that you speak to your legal team about what is right for your case.

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