Does pre-action disclosure need a shake up?

Many of us will be familiar with the content of the Pre-Action Protocol for Personal Injury and in particular Annex C which sets out the standard disclosure lists that a Defendant must consider when formulating a response to a new claim under the pre-action protocol. Currently the protocol sets out different lists of disclosure documents which may be required for various claim types such as RTA's, highway tripping and workplace accidents. The list for workplace accidents is however significantly longer than that provided for the other types of accidents. It is separated into various subsections to cover initially general documents, but then gives specific lists thereafter relating to documents which may exist when specific regulations apply.

This approach is no doubt overwhelming for any Defendant not familiar with personal injury claims, trying to check if they have located all relevant disclosure upon receipt of a new claim. Across all of the workplace section of Annex C 125 items are listed as potential disclosure which could be required! That said analysis of those 125 items shows significant overlap and repetition. For example, the general documents list includes "all relevant risk assessments" however risk assessments then reappear under not only the Management of Health and Safety at Work Regulations 1999 section, but also the Manual Handling Operations Regulations 1992 section, Control of Substances Hazardous to Health Regulations 2002 section, Work at Height Regulations 2005 list as well as the Noise at Work lists. This was undoubtedly one of the reasons that the HSE has suggested to the Civil Procedure Rule Committee that the disclosure list for workplace claims be updated. After consideration the Committee has agreed that the request is sensible and, on that basis, they launched a consultation on their proposed amendments in June this year.

That consultation acknowledges the considerable repetition of documents caused by breaking the list up to cover each regulation separately and as a result they propose to consolidate these items into common categories instead. It is considered that this will prove to be more user friendly, though the consultation acknowledges there is a risk this will lead to oversimplification and some documents being overlooked. They did however also ask for input on the issue of proportionality, noting that currently there is no reference to this being taken into account when providing disclosure.

The proposed amended text supplied by the Civil Procedure Rules Committee now acknowledges in the introduction that documents are not the only way to evidence systems for managing health and safety and that witness statements to evidence the same should be given due weight. It also states that reference to a document does not indicate that it needs to be kept as a matter of course by a business. The wording acknowledges that smaller businesses are unlikely to have extensive documentation.

In terms of the items suggested for disclosure it is interesting to note that the word relevant has now been added in front of personal/occupational health records as well as communications between the defendant and HSE or other relevant investigatory agency. This is undoubtedly to avoid unnecessary bulky disclosure and to avoid encouraging fishing expeditions for documents.

A catch all provision is then added to cover "Evidence in relation to risk assessment, information instruction and training, thorough examination and test, health surveillance and in relation to user instructions and maintenance" A table is then supplied to evidence the relevant sections of each Regulation and the documents it specifically requires though confirmation is given that a single document may be sufficient to cover the requirements of more than one Regulation. The specific regulation disclosure lists remain beneath but in a much more condensed fashion, providing the items not covered by the generic provisions earlier in the document, though even here minor tweaks have been made to the wording used to provide added guidance.

The deadline for responses to the consultation has now passed and so the next step, after the responses have been collated, will be for the issue to be scheduled for further CRPC consideration and a final decision. We shall therefore need to keep an eye out for developments in this regard over the next few months to see if the proposed changes will be approved.

Ultimately any changes that can provide clarity on the defendant's duty for pre-action disclosure and simplify the lists of items companies need to check for will undoubtedly be welcomed by insurers and defendants alike. Whilst it will not resolve all pre-litigation investigation issues, it may help contribute to controlling the exposure for pre-action disclosure applications which can sometimes be little more than costs building exercises for claimant solicitors. That said Defendants will still be required to undertake timely and appropriate searches for relevant information and no changes to the protocol will remove that requirement. We will provide an update once a final decision has been made to confirm the exact amendments agreed but if you have any queries over your disclosure obligations with respect to workplace accidents in the meantime, please do hesitate to contact us here at Forbes.