Pre-Action Disclosure Application (PAD)
Disclosure is the process by which the parties in a claim are able to find out about each other's documents prior to any trial. Personal injury lawyers submit the disclosures on behalf of their clients .
Pre Action Disclosure or 'PAD', as its title suggests, is disclosure before a Claim has been formally issued.
The purpose of PAD is to encourage the early exchange of information about a prospective claim; the information gathered may be used to assess liability and whether the claimant has a case to bring.
It may save both time and cost.
What happens when the defendant does not disclose information?
If the defendant or his insurers fail to respond to correspondence about the Claim, a Pre Action Disclosure Application (PAD) may be made to Court to request that the Court makes an Order to force the defendant to disclose relevant documentation in accordance with the Claim.
Before this action is taken, the defendant should be given notice that further delays in responding within a specified time frame (say 14 days) will result in a PAD application being issued to the Court.
The purpose of pursuing this action is to prevent further unnecessary delays for a Claim.
What is included in the PAD application?
To justify the application and prevent it being struck out of court, it is important that a statement detailing the previous correspondence between the parties is included.
This will demonstrate that every effort has been made to obtain the necessary documentation prior to bringing court action.
A "draft order" setting out the documentation that should be disclosed by the defendant is drawn up.
Relevant documentation depends on the nature of the claim and may include insurance details, works 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 he never had the 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 then 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 bringing a PAD application?
A Court fee is payable - generally by the claimant. The Court may use its discretion and order the defendant to pay the costs if it believes he 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. Read more about PAD here.