Pre-Action Disclosure Application (PAD)
'Disclosure' is the process by which the parties in an injury claim are able to find out about each other's documents prior to a court hearing.
A Pre Action Disclosure (PAD) is a disclosure made before a claim has been formally issued.
The purpose of PAD is to encourage the early exchange of information about a prospective claim. This information can help determine who is liable for an injury and whether there is a case to answer.
A PAD can save time and cost by potentially helping resolve a claim without the need to proceed to court.
What happens if the defendant does not disclose any information?
If the defendant or the insurer fails to respond to correspondence about the claim, your solicitor can make a Pre Action Disclosure Application to the court. This application requests that the court makes an order to force the defendant to disclose relevant documentation in accordance with your claim.
Before this action is taken, the defendant should be given notice that further delays in responding within a specified time frame will result in a PAD application being issued to the court.
The purpose of pursuing this course of action is to prevent further unnecessary delays to your claim.
What is included in a PAD application?
To justify the application and prevent it from being 'struck out of court', it is important that a statement detailing the previous correspondence between the parties is included.
This statement should demonstrate that every effort has been made to obtain the necessary documentation prior to starting court action.
A "draft order" setting out the documentation that should be disclosed by the defendant is then drawn up.
The relevant documentation will depend on the nature of the claim and may include insurance details, medical records, risk assessments, accident book entries, and so on.
The order may also specify a time and place for the documents to be disclosed and inspected.
What happens if the defendant does not disclose the requested documentation?
Where the defendant does not have the documentation then he must say that he does not have it and explain why.
It may be that the defendant never had the requested documentation, or that it has been destroyed. It may prejudice any defence to the claim if he has no documentation.
If the defendant does not comply with the court order, the claimant can apply to the court for a 'penal notice' to be endorsed upon the order. This may have financial implications for the defendant.
Is there a cost in making a PAD application?
A court fee is payable - generally by the claimant. The court may use its discretion and order the defendant to pay these costs if the court believes the defendant had unreasonably resisted the initial request for disclosure.
Although a PAD application can take time (perhaps a month before a hearing date in court) it is useful in preventing further delays where the defendant is not responding.
Chris Salmon, Director
About the author
Chris Salmon is a co-founder and Director of Quittance Legal Services. Chris has played key roles in the shaping and scaling of a number of legal services brands and is a regular commentator in the legal press.