Pre-action protocol deadlines in England and Wales: what evidence must already exist

This page covers England and Wales, where the Civil Procedure Rules and their pre-action protocols apply. Scotland and Northern Ireland operate different pre-action regimes. It describes what the timetable presupposes on the defendant and insurer side. It does not reproduce the protocols themselves, which are published in full by the Ministry of Justice, and it does not assess whether any particular claim has been complied with or is defensible.

What does the timetable assume already exists?

The pre-action protocols are drafted as communication rules. They tell each side what to send and when. What they do not do is create evidence, and the drafting quietly assumes that the defendant can reach for a contemporaneous record of the event as soon as a letter arrives.

The Practice Direction on Pre-Action Conduct and Protocols sets the position where no approved protocol covers the claim, which is not the case in personal injury, where one does. It is still worth reading, because the protocols are built on its assumptions. Paragraph 3 requires the parties to exchange enough information to understand each other’s position, make decisions about how to proceed, and try to settle the issues without proceedings. Paragraph 6 asks the defendant to respond within a reasonable time, described as 14 days in a straightforward case and no more than three months, and to disclose key documents relevant to the issues in dispute. Paragraph 4 adds that only reasonable and proportionate steps should be taken, and that the process must not be used as a tactical device. (justice.gov.uk)

The phrase “key documents relevant to the issues in dispute” is doing the heavy lifting. A defendant who holds an accident book entry, a photograph taken at the scene and an inspection record from the week before can meet that obligation from the archive. A defendant who holds none of it has nothing to disclose and no way to build it retrospectively.

How long does a defendant actually have to respond?

Under the Pre-Action Protocol for Personal Injury Claims, the defendant must reply within 21 calendar days of the date of posting of the Letter of Claim, identifying the insurer if there is one (paragraph 6.2). The defendant then has a maximum of three months from the date of acknowledgment to investigate and respond on liability (paragraph 6.3). Where the accident occurred outside England and Wales, or the defendant is outside the jurisdiction, those periods are normally extended to 42 days and six months (paragraph 6.4). Documents material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court, are enclosed with the response (paragraph 6.5). (justice.gov.uk)

Two operational points follow. First, the protocol contemplates the Letter of Claim being sent in two copies, one of which the defendant passes to insurers, and it allows seven days for that step (paragraph 5.1). Any delay inside the insured organisation comes out of the same three months. Second, the protocol also provides for a Letter of Notification at paragraph 3.1, sent before a detailed Letter of Claim, which is often the first moment an insurer learns that an incident has become a claim.

Three months sounds generous until it is divided up. Locating the file, identifying which of several sites or subcontractors was involved, tracing the witnesses, obtaining the maintenance history and getting a liability view all sit inside it, alongside the expert nomination process at paragraph 7.6, which allows 14 days for the other party to object to a nominated expert.

What does the low value EL and PL protocol change?

The Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims compresses the same work into a much shorter window. It applies to claims valued at not more than £25,000 arising from accidents on or after 31 July 2013, and excludes claims where the small claims track would be the normal track. Claims brought by or on behalf of a protected party sit outside it, as do mesothelioma and certain other disease claims, and claims for damages in relation to harm, abuse or neglect of or by children or vulnerable adults. A child claimant’s ordinary accident claim is not excluded on the ground of age alone. (justice.gov.uk)

The claimant sends a Claim Notification Form to the insurer where the insurer is known. The defendant provides an electronic acknowledgment the next day after receipt (paragraph 6.9). The CNF response is then due within 30 days for an employers’ liability claim and 40 days for a public liability claim (paragraph 6.11), counted in business days. If the defendant does not respond within the period, the claim no longer continues under the protocol (paragraph 6.13). Leaving the protocol is not the same as leaving fixed costs. Since the extension of fixed recoverable costs on 1 October 2023, a claim of this kind is dealt with under the rewritten CPR Part 45, in the fast track under Section VI or the intermediate track under Section VII, and rule 45.39 requires the court to take into account the Stage 1 and Stage 2 fixed costs the defendant has already paid. (justice.gov.uk)

Thirty business days is roughly six working weeks to reach a position on liability. That is a records exercise, not an investigation exercise. Nobody interviews a witness about a slip that happened two years ago and produces better evidence than a photograph taken on the day.

Claims Portal, a not-for-profit company whose board is balanced between claimant and compensator representatives with an independent chair, carries the electronic route for employers’ liability and public liability claims under this protocol. Road traffic injury claims valued at not more than £5,000 have run through the Official Injury Claim service since 31 May 2021 instead. (claimsportal.org.uk)

Which records are created by statute, not by the claim?

Several categories of evidence exist because the law required them at the time, entirely independently of any claim.

Under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013, which we set out in RIDDOR explained, a specified injury to a worker is reportable, and where a person at work is incapacitated for routine work for more than seven consecutive days excluding the day of the accident, the responsible person must report within 15 days of the accident (regulation 4). Schedule 1 requires the enforcing authority to be notified by the quickest practicable means without delay, with a report sent in an approved manner within 10 days of the incident. Regulation 12 requires records to be kept, including of injuries incapacitating a worker for more than three consecutive days, and an entry must be kept for at least three years from the date on which it was made. (legislation.gov.uk, regulation 12)

Separately, regulation 25 of the Social Security (Claims and Payments) Regulations 1979 requires certain employers, including those with ten or more employees at the same premises, to keep readily accessible a means of recording accidents causing personal injury, whether in a book or by electronic means, and to preserve each record for at least three years from the date of its entry. (legislation.gov.uk)

None of this travels. A United States employer facing the same accident opens a workers’ compensation claim with a state first report of injury form, which runs on a filing deadline measured in days rather than on a disclosure timetable measured in months.

Annex C of the Pre-Action Protocol for Personal Injury Claims sets out standard disclosure lists. The workplace list runs to dozens of categories and includes the accident book entry, first aid and medical records, supervisor and safety representative reports, RIDDOR notifications, health and safety committee minutes, CCTV and other footage, equipment manuals and maintenance records, risk assessments, investigation reports and records of previous similar accidents. The highway tripping list is built around inspection and maintenance records for the relevant stretch of highway covering the twelve months before the accident, together with complaint records and records of other accidents at the location. (justice.gov.uk)

That highway list mirrors the statutory defence it is aimed at. Section 58 of the Highways Act 1980 turns on the care reasonably required to secure that the relevant part of the highway was not dangerous for traffic, and section 58(2) directs the court to matters including the character of the highway, the standard of maintenance appropriate for it, the state of repair a reasonable person would have expected, and whether the authority knew or could reasonably have been expected to know of the danger. (legislation.gov.uk)

An inspection regime that was not recorded at the time cannot be evidenced later. The statutory defence is built on documents whose value depends entirely on when they were made.

What cannot be created after the fact?

Four things, reliably.

The scene as it was. Transient conditions, spillages, temporary works, lighting, weather, guarding and signage all change within hours. A photograph with a timestamp and a location is the only version of that scene anyone will ever have.

First accounts. Witness recollection degrades, and witnesses leave. Section 33(3) of the Limitation Act 1980, which governs the court’s discretion to disapply the primary limitation period, expressly directs attention to the extent to which evidence is likely to be less cogent because of delay, alongside the length of and reasons for delay and the defendant’s conduct in responding to requests for information. The primary period for personal injury actions runs three years from accrual or the claimant’s date of knowledge if later (section 11). (legislation.gov.uk)

Pre-incident condition. Whether a floor had been inspected, whether a machine had been maintained, whether a hazard had been reported before, all of it depends on records made before anyone knew a claim was coming.

The insurance trail. The Employers’ Liability (Compulsory Insurance) Act 1969 requires an employer to insure against liability to employees, and regulation 3 of the Employers’ Liability (Compulsory Insurance) Regulations 1998 sets the minimum at £5 million (legislation.gov.uk). Since 1 October 2008 there has been no legal requirement to keep copies of out-of-date certificates, but the HSE advises employers to keep as complete a record of their employers’ liability insurance as possible, because some diseases appear decades after exposure. (hse.gov.uk)

What does the insurer need in the file?

An insurer responding inside 30 business days is asking a narrow set of questions: what happened, when and where exactly, who was involved, who saw it, what condition the site or equipment was in, what had been done about that condition beforehand, and who else may share responsibility. Every one of those is answered by material captured at the time or not at all.

HSE guidance on the 1969 Act notes that an insurer cannot refuse to pay compensation purely because the employer did not keep specified records or cannot provide information from them, but also that where the insurer believes a failure to meet health and safety responsibilities led to the claim, the policy may enable the insurer to sue the employer to reclaim the cost of the compensation. (hse.gov.uk) Record keeping is therefore not only an evidential question for the claim but a commercial one between insured and insurer.

Where non-compliance bites

The Practice Direction on Pre-Action Conduct and Protocols reserves to the court, at paragraphs 15 and 16, the ability to stay proceedings while steps are taken and to impose sanctions, including orders about costs, costs on the indemnity basis, and adjustments to interest. Whether any of that follows in a given case is a matter for the court on the facts before it.

Frequently asked questions

Sources

• Practice Direction on Pre-Action Conduct and Protocols, Ministry of Justice: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct
• Pre-Action Protocol for Personal Injury Claims, including Annex C standard disclosure lists: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_pic
• Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-low-value-personal-injury-employers-liability-and-public-liability-claims
• Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013, regulation 4: https://www.legislation.gov.uk/uksi/2013/1471/regulation/4/made
• Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013, regulation 12: https://www.legislation.gov.uk/uksi/2013/1471/regulation/12/made
• Social Security (Claims and Payments) Regulations 1979, regulation 25: https://www.legislation.gov.uk/uksi/1979/628/regulation/25
• Highways Act 1980, section 58: https://www.legislation.gov.uk/ukpga/1980/66/section/58
• Limitation Act 1980, sections 11 and 33: https://www.legislation.gov.uk/ukpga/1980/58/section/33
• HSE, Employers’ Liability (Compulsory Insurance) Act 1969: a brief guide for employers (HSE40): https://www.hse.gov.uk/pubns/hse40.pdf
• Civil Procedure Rules, Part 45, fixed costs: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part45-fixed-costs
• Ministry of Justice, Extending Fixed Recoverable Costs: a note on the new rules: https://www.justice.gov.uk/documents/frc-public-notice-updated.pdf
• Claims Portal Ltd: https://www.claimsportal.org.uk/about/

Last reviewed: 16 September 2026

About Logincident. Logincident is a data and software company whose configurable platform captures structured evidence at source through a mobile app, forms, photographs, GPS and offline capture, and presents it in dashboards and reports. We are not a law firm or a claims handler, and nothing on this page is legal advice.