Pre-action conduct Flashcards
PRE-ACTION CONDUCT AND PROTOCOLS
para 1
Introduction
rules before commencing proceedings
A person who knowingly makes a false statement in a pre-action protocol letter or other document prepared in anticipation of legal proceedings may be subject to proceedings for contempt of court
PRE-ACTION CONDUCT AND PROTOCOLS
para 3
Objectives of pre-action conduct and protocols
the court would expect parties to have exchanged info to:
(a) understand each other’s position;
(b) make decisions about how to proceed;
(c) try to settle the issues without proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute.
PRE-ACTION CONDUCT AND PROTOCOLS
para 4
Proportionality
Only reasonable and proportionate steps should be taken by the parties to help eachother
and the costs incurred for complying with pre action protocols should be proportionate but not recoverable as part of proceedings
PRE-ACTION CONDUCT AND PROTOCOLS
para 6
Steps before issuing a claim at court
Steps before court
(a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;
(b) the defendant responding within a reasonable time - 14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and
(c) the parties disclosing key documents relevant to the issues in dispute
PRE-ACTION CONDUCT AND PROTOCOLS
para 7
Experts
the court must give permission before expert evidence can be relied upon (see CPR 35.4(1)) and that the court may limit the fees recoverable - better to have a jointly appointed expert to split costs
PRE-ACTION CONDUCT AND PROTOCOLS
para 8, 9, 10, 11
Settlement and ADR
litigation is a last resort and parties should consider ADR to settle instead
settlement should be considered at all times of the case
Part 36 offers may be made before proceedings are issued
examples of ADR:
(a) mediation, a third party facilitating a resolution;
(b) arbitration, a third party deciding the dispute;
(c) early neutral evaluation, a third party giving an informed opinion on the dispute; and
(d) Ombudsmen schemes
parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered UNREASONABLE by the court and could lead to the court ordering that party to pay ADDITIONAL COURT COSTS
PRE-ACTION CONDUCT AND PROTOCOLS
para 12
Stocktake and list of issues
Where a dispute has not been resolved after the parties have followed a pre-action protocol or this Practice Direction, they should review their respective positions
PRE-ACTION CONDUCT AND PROTOCOLS
para 13, 14, 15, 16
Compliance with this practice direction and the protocols
court will take into account non-compliance
failure of compliance is =
(a) not provided sufficient information to enable the objectives in paragraph 3 to be met;
(b) not acted within a time limit set out in a relevant protocol, or within a reasonable period; or
(c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.
Court may order =
(a) the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction;
(b) the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction;
(c) sanctions are to be applied
sanctions courts may impose =
a) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties;
(b) an order that the party at fault pay those costs on an indemnity basis;
(c) if the party at fault is a claimant who has been awarded a sum of money, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded;
(d) if the party at fault is a defendant, and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate, (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.
PRE-ACTION CONDUCT AND PROTOCOLS
para 17
Limitation
pre-action protocols do not alter the statutory time limits for starting court proceedings.
If a claim is issued after the relevant limitation period has expired, the defendant will be entitled to use that as a defence to the claim.
If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Practice Direction or the relevant pre-action protocol, the parties should apply to the court for a stay of the proceedings while they so comply
Personal injury Pre action Protocol overview
parties should consider as early as possible whether the Claimant has any rehabilitation needs as the sooner it is considered, the better the prognosis is and potentially means the defendant may have to pay less if the injury rehabilitation is put in place quickly
litigants in person are expected to follow the PI pre action protocol just as any counsel/client is
The defendant will have a maximum of three months from the date of acknowledgment of the Letter of Claim to investigate the injury/circumstances. No later than the end of that period, The defendant (insurer) should reply by no later than the end of that period
One should not normally issue proceedings while the protocol steps are in progress, but if the limitation period were about to expire, the claimant should issue proceedings. Those proceedings could then by ‘stayed’ (put on hold) while the protocol steps are completed (3 years in PI claims)
Pre-action disclosure
An application for disclosure can be made to the court BEFORE proceedings have started
the court will grant this if:
the application is supported by evidence
the respondent is likely to be a subsequent party
if those documents would have been included in standard disclosure if proceedings would have started
this is to:
fairly dispose of proceedings
assist the dispute
save costs
the order will:
specify the documents that are no-longer under their control
specify time and place for specific disclosure
