Changes to pre-action protocol guidance in Northern Ireland to be welcomed by insurers

The County Court of Northern Ireland Pre-Action Protocol for Personal injury and Damage Only Road Traffic Accident Claims was published on 6 February 2023, which is a welcome move for insurers. 

While the protocol remains focused on achieving the best litigation practice by encouraging contact and exchange of information between parties, the guidance has taken this a step further and has set out very specific directions for damage only claims. This has significantly enhanced the information that the plaintiff is required to share with the defendant/insurer.

The protocol indicates that the plaintiff must disclose the following from the outset:

• the plaintiff’s date of birth
• the details of heads of claim to be presented if available
• the plaintiff’s impecuniosity position if ascertainable
• details of whether the vehicle is roadworthy or drivable
• the plaintiff’s occupation, if relevant. For example, if the plaintiff uses their vehicle as a taxi or primarily for business purposes.

Little has changed with the above requirements but clarity on this latter point will be crucial to ascertain the best defence challenges for taxi cases.

Paragraph 8 goes on further to specify that where vehicle damage/and or the cost of a replacement vehicle is being claimed, the plaintiff will provide the following:

• the repair invoice
• any depreciation report
• the recovery agreement and invoice
• the storage agreement and invoice
• confirmation of whether the plaintiff has transferred their own comprehensive insurance, and if so, they will provide temporary insurance invoices
• the hire invoice and hire agreements
• proof that they held a valid licence for three years prior to the accident
• confirmation of whether they held any penalty points at the time of hire
• confirm if they need to potentially travel outside of Northern Ireland
• confirmation of whether the vehicle was required for purposes of taxiing, towing, or storing livestock
• the details of additional drivers, their relationship to the plaintiff, convictions, penalty points and length of time that additional driver has held a licence
• the reasons for high-risk charges if applicable.

If the plaintiff’s vehicle is being repaired under a “credit repair” agreement then the plaintiff will provide the following;

• the date that the plaintiff’s engineer was instructed
• the date that the plaintiff’s engineer inspected their vehicle
• the date that the plaintiff’s engineer completed their report
• confirmation of the make, model, engine size, mileage of the plaintiff’s vehicle at the date of accident
• the expiry date of the MOT certificate
• confirmation of whether the vehicle was roadworthy and driveable at inspection
• a breakdown of hourly rate, hours spent, parts, paint/materials, specialist costs and VAT
• the repair invoice
• the dates on which hire started and ended
• confirmation of the date the plaintiff collected their vehicle, if different to the date the hire ended
• confirmation as to whether the plaintiff is registered for VAT.

The engineer/motor assessor should be served with photographs to show the vehicle including all areas of damage and (if available) repairs undertaken, which have been provided to the engineer and/or taken by the engineer.

Where the plaintiff’s vehicle is a total loss, and the process is dealt with by an accident management company, the plaintiff will provide, if available, a copy of the engineer’s report which will include:

• the date the engineer was notified of the accident
• the date of inspection and completion of the report
• the date the pre-accident value figure was received by plaintiff or their representative
• confirmation of the mileage at the date of accident
• a breakdown of the estimated hourly rate, hours spent, parts/paint/materials, any specialist costs and VAT
• the pre-accident value at date of accident, salvage value at the time of accident and the salvage category code
• details of the salvage figure
• confirmation as to whether the plaintiff is registered for VAT.

Along with the engineer’s report, the plaintiff’s representative will confirm the date the hire started and ended if that information is available.

If the damage to the plaintiff’s vehicle is being dealt with under the terms of their comprehensive insurance policy, then the plaintiff should provide consent to the defendant’s insurers obtaining the above details from the plaintiff’s insurers if required.

If the plaintiff is relying on impecuniosity, they will provide the following information, if available:

• three months’ bank/building society statements
• three months’ credit union savings statements or the equivalent
• the monthly cost of servicing any debts/loans
• details of outgoings at the time of the accident
• details of their earnings at the time of the accident, and if the plaintiff’s earnings are not paid into a bank account, then three months’ pay slips will be provided.

The position remains that no penalties or sanctions will be imposed for not providing the above documentation and indeed the guidance only applies where liability has been admitted. However, the very specific wording of the protocol ought to strengthen insurers’ position in directing the above information and documentation is made available.

This insight was authored by Michelle MCullough and Laura Connor.