Workplace Claims Pre-action Protocol Disclosure Consultation

The extensive schedule of potentially relevant documents listed in ‘Annex C: Pre-Action Personal Injury Protocol Standard Disclosure Lists’ for Workplace Claims was intended to provide guidance to litigants on their disclosure duties and encourage a pre-action ‘cards on the table’ approach, in the hope of litigation being avoided. However, by grouping required documents under each potentially relevant statutory regulation in turn, document types are duplicated several times  meaning that often, defendants have been approached to provide extensive documentation, sometimes untailored to the particular claim. 

In light of this duplication, the Civil Procedure Rule Committee (CPRC) is consulting on a revised list, which principally groups by document type. The five core categories of document (linked to the statutory regulations to which they apply) are:

• Risk and other assessments;
• General information, instruction and training;
• Inspection/examination, testing and record keeping
• Health surveillance including records
• User instructions and evidence of maintenance and inspection system/records

Beyond these core categories, the proposed list retains many of the current document types by Regulation. However, there are some subtle but important amendments:-

• The reference to ‘documents’ under each Regulation is amended to ‘evidence’ – the Rule Committee accepts that smaller organisations in particular may not have extensive documentation or may indeed be exempt from certain statutory requirements, such as the need to document risk assessment findings or have a written safety policy when employing fewer than five people.
• For claims under certain Regulations, new document/evidence types have been included such as additional signage disclosure for traffic routes under the CDM Regulations, evidence as to areas where a risk of falling or being struck are clearly indicated pursuant to the Work at Height Regulations, or markings of lifting equipment or notification of defects under LOLER.

The CPRC recognises that the court still requires evidence in respect of the arrangements for managing health and safety and that staff are aware of such arrangements. Whilst the shift from documents to evidence may appear helpful in giving a defendant more flexibility as to how they may demonstrate compliance with the regulations, and in turn, maintain a defence, the amendments do pose some challenges:-

• By referencing the likes of information and training generically, the list loses some degree of detail which may have guided a defendant as to the precise type of relevant training and instruction to be evidenced;
• The CPRC themselves acknowledge that the oversimplification of the new list may encourage certain defendants to adopt a tick box approach and may prove problematic in multi-breach cases;
• The clarification that “evidence may include physical evidence or a statement as to verifiable facts not otherwise in writing or recorded and should be given due weight alongside documented evidence. The words ‘report’ or ‘record’ should not be taken to imply a written and/or formal record in all circumstances. This could for example include records from electronic/mobile devices” means that in reality, the pre-action search and disclosure is likely to be less straightforward. For example, what is the precise nature and standing of the statement referred to? Greater thought will need to be given at the pre-litigation stage as to what is available and what should be disclosed at that juncture.
• The consultation has only focused on the schedule of disclosure in workplace claims; the wider Protocol awaits review and revision by the Civil Justice Council. Consequently, the extent of disclosure and evidence required from defendants to satisfy a claimant and avoid a pre-action disclosure application will still be determined in the main by the ambit of the specific letter of claim. As now, the extent and suitability of documentation requested is still likely to vary hugely from claim to claim.

Whilst a commendable effort by the Rule Committee, the proposed changes are unlikely to remove the pre-action disclosure battleground between the parties and will require defendants’ advisers to be clearer to their clients about the range and type of documentation and other evidence which must be located by way of reasonable and proportionate search.

The consultation closes on 4 August and you can find more information in the standard disclosure workplace claims consultation explanatory note