28 April 2020
APIL / FOIL / ABI Agreement For Personal Injury Cases In NI
Further to arrangements already agreed by them in Scotland and in England & Wales, APIL, FOIL and the ABI have negotiated an agreed Personal Injury Protocol applicable to this jurisdiction. Amongst other matters, it addresses limitation periods and service of proceedings.
If any firm wishes to be added as a signatory to the Protocol please access the information in the link below and contact ABI at the email address therein under the heading - Limitation Protocol Agreement – Northern Ireland -
APIL and FOIL have also produced a ‘Best Practice For Mutual Co-Operation in Northern Ireland’ which they recommend that their members consider and adopt where possible.
Limitation Protocol Agreement – Northern Ireland
A protocol is agreed between the ABI and APIL and comes into effect immediately. It will remain in effect for a minimum of four weeks, with a joint review in the week commencing 18 May 2020 of the following:
- That as between the parties, but ultimately subject to the authority of the court, limitation dates in all personal injury cases shall be frozen for the duration of this Protocol and any further extensions to the period of this Protocol:
- That Defendants’ representatives will, for the duration of this agreed Protocol and any extensions to same, accept service of proceedings by email should that be necessary: including cases on which protective proceedings have been previously issued provided the proceedings are correct in every respect as they would be if served in the normal way and are emailed to the nominated address for service.
APIL and FOIL Best Practice For Mutual Co-Operation in Northern Ireland
APIL and FOIL have set up a working party to discuss various aspects of our members’ work, which have been affected during the coronavirus outbreak. We have agreed a set of best practices that we recommend their members consider and adopt where possible.
Good communication is very important, particularly now that many offices have closed and are unable to access their post on a daily basis. Practitioners should engage with their counterparts by telephone and/or email with a view to resolving disputes effectively and efficiently. Many members’ fee earners are able to make and receive telephone calls even while home working. Email signatures should be updated to indicate the correct contact numbers if they have changed due to remote working. Similarly, individual email addresses should be provided.
- Service by email, including new proceedings
It is our view that it is in the best interests of your clients and the effective conduct of claims to agree that, where firms have been nominated to accept service, they temporarily agree to accept service by email.
For the avoidance of doubt, agreement to accept service by email shall be an agreement to accept a change to the rules as to mode of delivery only, with all other provisions on service continuing to apply including High Court Order 10 R1(4) and County Court Order 6 R3(4).
It is entirely reasonable to seek express confirmation from your counterpart that this covers service of the claim form where appropriate (remembering that solicitors must have been given as the address for service for this to be effective).
You should consider using a dedicated email address for the receipt of service for documents and proceedings.
Where a firm has declined to accept service by email the best course is likely to be to serve in any event.
It is inevitable in the current circumstances face -to-face examinations will be difficult to arrange. It will often be in the client’s best interests to agree to use some form of video conferencing for experts’ ‘examinations’ of the injured person.
The BMA has issued guidance to medics indicating that the NHS is turning to remote consultations in order to minimise the risk of infection for staff and patients. Its guidance for medics is here: https://beta.bma.org.uk/advice-and-support/covid-19/practical-guidance/covid-19-remote-consultations-and-homeworking
While we accept that Medco has no place in the Northern Ireland jurisdiction, its guidance may be useful for practitioners. You might wish to consider the arrangements made Medco in England and Wales where the ban on the use of remote examinations is to be lifted. Guidelines are available on the Medco website, which you may find of some assistance: https://www.medco.org.uk/media/1186/remote-examination-guidelines.pdf
Exchange of evidence
Parties should consider whether relevant medical notes and records can be provided prior to the medical examination without the need for a court order.
Parties should try to agree to the exchange of medical evidence by email, via a password protected pdf document or where not available the exchange should be encrypted.
We recommend that practitioners take a consensual approach to considering requests for the extensions and respond similarly to requests made by their counterparts.
To ensure that claims continue to be settled appropriately in a timely manner, parties should consider whether negotiations and joint consultations can go ahead by telephone or video-conference.
Lord Chief Justice has indicated in his Covid-19 Note dated 17th March 2020 that whilst most Civil matters have been administratively adjourned, the Northern Ireland Courts and Tribunal Service (NICTS) are considering what business can be managed by way of live link, Skype or telephone conference. You are advised to monitor any further LCJ updates in this respect.
Following the LCJ’s Note dated 17th March, most Civil business is already administratively adjourned. In the future, as matters develop, where appropriate, we recommend that you take a consensual approach should it be necessary to seek an adjournment of either an interlocutory hearing or trial.
Parties ought to adopt a reasonable approach to requests for interim payments. In the current climate, interim payments are likely to be of vital importance, and any unnecessary applications to the court ought to be avoided.
To enable a more efficient and effective transfer of funds for damages and costs firms should use BACS payments wherever possible. Note that in light of the increased information security and financial crime risks associated with BACS payments, please ensure that you only make payments by BACS to the account details provided by your COLP, providing appropriate evidence to validate the bank account details provided.