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

Defendants can't just ignore an injury compensation claim. What happens if a defendant, or their solicitor, moves too slowly or doesn't respond to a claim?

'Letter of Claim'

At the start of your personal injury claim, your solicitor will send a 'letter of claim' to the defendant. This letter is the first step in the Pre-Action Protocol for Personal Injury Claims.

This letter will either be sent directly to the defendant, to their solicitor, or to their insurance company. The letter sets out the basis of the claim and asks the defendant whether they accept liability for your injury.

Defendants sometimes choose to ignore the letter of claim. By ignoring the letter, the defendant may think the problem will go away. Or maybe they are playing for time.

If the defendant fails to acknowledge the letter of claim, your solicitor can apply to the court for an order that forces the defendant to respond.

What is the time limit 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 acknowledgment of the letter of claim. 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. Your solicitor is entitled to apply for a court order that will force the defendant to respond.

How will my solicitor make a court application?

The application your solicitor will make is called an Application to Court for Pre-Action Disclosure (PAD). After filing the court papers, your solicitor will attend a court hearing and must prove to the judge that the defendant has materially failed to comply with pre-action protocols.

You would not be 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 which

• requires the defendant to accept or deny liability and
• forces the defendant to disclose any 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.

What is a Pre-Action Disclosure (PAD)?

A Pre-Action Disclosure (PAD) Application enables parties in an injury claim to access each other's documents before a court hearing, encouraging an early exchange of information about a potential claim. This process helps establish liability and can often prevent the need for court proceedings, saving both parties time and cost.

If the defendant or insurer fails to respond to requests for information, your solicitor may submit a PAD application, asking the court to order disclosure of essential documents. A supporting statement and draft order will outline what should be disclosed and will set out your solicitor's prior attempts to secure these documents.

In cases where the defendant cannot or will not provide the requested documents, they must explain why. Non-compliance can lead to further court action, potentially resulting in financial consequences for the defendant.

The claimant usually pays a court fee, though costs will shift to the defendant if they have unreasonably withheld disclosure.

Is a court application the best course of action?

Not necessarily. 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 reject it.

Your solicitor may feel it is more appropriate to warn the defendant and offer an extension to the period they have to respond to the letter of claim.

See also:

What can I do to speed up my injury claim?

Work accidents Road accidents Public places Medical negligence Other accidents

Author:
Howard Willis, Personal injury solicitor

About the author

Howard Willis qualified as a solicitor in 1984 and has specialised in personal injury for over 25 years. He is a member of the Association of Personal Injury Lawyers (APIL) and is a recognised Law Society Personal Injury Panel expert.