2 Pre Action Protocols

Question 1

List of the specific pre-action protocols

Answer 1

• personal injury
• low value road traffic accidents,
• clinical negligence,
• disease and illness
• rent arrears
• housing disrepair
• mortgage possession
• commercial property dilapidations
• construction and engineering
• professional negligence
• defamation
• judicial review

Question 2

PDPAC para 1: Aims of PD - Pre-Action Conduct

Answer 2

1. 1 The aims of this Practice Direction are to –
   (1) enable parties to settle the issue between them without the need to start proceedings (that is, a court claim); and
   (2) support the efficient management by the court and the parties of proceedings that cannot be avoided.
2. 2 These aims are to be achieved by encouraging the parties to –
   (1) exchange information about the issue, and
   (2) consider using a form of Alternative Dispute Resolution (‘ADR’).

Question 3

PDPAC para 2.2: types of application where PD - Pre-Action Conduct can’t apply

Answer 3

2. 2 There are some types of application where the principles in this Practice Direction clearly cannot or should not apply. These include, but are not limited to, for example –
   (1) applications for an order where the parties have agreed between them the terms of the court order to be sought (‘consent orders’);
   (2) applications for an order where there is no other party for the applicant to engage with;
   (3) most applications for directions by a trustee or other fiduciary;
   (4) applications where telling the other potential party in advance would defeat the purpose of the application (for example, an application for an order to freeze assets).

Question 4

PI-PAP para 2.10A: If claim ceases to be covered by RTA protocol …

Answer 4

Where a claim no longer continues under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents or the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims the Claim Notification Form (‘CNF’) completed by the claimant under the relevant Protocol can be used as the letter of claim under this Protocol unless the defendant has notified the claimant that there is inadequate information in the CNF.

Question 5

PI-PAP para 3.1-3.9: Letter of claim (in outline/paraphrased)

Answer 5

3. 1 Subject to para 2.10A, C shall send to proposed D 2 copies of a letter of claim, immediately sufficient information is available to substantiate a realistic claim and before issues of quantum are addressed in detail. One copy is for D, the second for passing on to his insurers.
4. 2 The letter shall contain a clear summary of the facts …with an indication of the nature of injuries suffered and financial loss incurred. …
5. 3 … Recommended to use a standard format for such a letter
6. 4 The letter should ask for details of the insurer and that a copy should be sent by the proposed D (or direct) to the insurer where appropriate …
7. 5 Sufficient information should be given in order to enable D’s insurer/solicitor to commence investigations and… broadly valuate ‘risk’.
8. 6 D should reply within 21 calendar days of the date of posting the letter identifying the insurer …. If there has been no reply by D/insurer within 21 days, C will be entitled to issue proceedings.
9. 7 D(’s insurers) will have a maximum of 3 months from the date of acknowledgment to investigate. No later than the end of that period D (insurer) shall reply, stating whether liability is denied (giving reasons for their denial including any alternative version of events).
10. 8 Where the accident occurred outside England/Wales and/or where D is outside the jurisdiction, the time periods should normally be extended up to 42 days and 6 months.
11. 9 Where C’s investigation indicates that the value of the claim has increased to more than the fast track limit since the letter of claim, C should notify D as soon as possible.

Question 6

PI-PAP para 4.1: Consideration of rehabilitation treatment

Answer 6

The claimant or the defendant or both shall consider as early as possible whether the claimant has reasonable needs that could be met by rehabilitation treatment or other measures.

Question 7

PI-PAP para 2.16 to 2.19

Answer 7

2.16 The parties should consider whether some form of ADR procedure would be suitable…, and if so, endeavour to agree which form to adopt. Both C and D may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. … Parties are warned that if the protocol is not followed … then the Court must have regard to such conduct when determining costs.
2.17 …Summarised … are some of the options for resolving disputes without litigation:
Discussion and negotiation.
Early neutral evaluation by an independent third party …
Mediation …
2.18 …
2.19 It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR.

Question 8

PDPAC Annex A, para 2: C’s letter before claim details

Answer 8

2. 1 C’s letter should give concise details about the matter, enabling D to understand and investigate the issues without needing to request further information. The letter should include –
   (1) the claimant’s full name and address;
   (2) the basis on which the claim is made;
   (3) a clear summary of the facts on which the claim is based;
   (4) what C wants from D; and
   (5) if financial loss is claimed, an explanation of how the amount has been calculated.
3. 2 The letter should also –
   (1) list the essential documents on which the claimant intends to rely;
   (2) set out the form of ADR (if any) that C considers the most suitable and invite D to agree;
   (3) state the date by which C considers it reasonable for a full response to be provided by D; and
   (4) identify and ask for copies of any relevant documents not in C’s possession and which C wishes to see.
4. 3 Unless the defendant is known to be legally represented the letter should –
   (1) refer D to this Practice Direction and in particular draw attention to paragraph 4 concerning the court’s powers to impose sanctions for failure to comply with the Practice Direction; and
   (2) inform D that ignoring the letter before claim may lead to C starting proceedings and may increase D’s liability for costs.

Question 9

PD-PAC para 7: Letter before claim and reply

Answer 9

7. 1
   (1) C should set out the details of the matter in writing by sending a letter before claim to D. This letter before claim is not the start of proceedings; and
   (2) D should give a full written response within a reasonable period, preceded, if appropriate, by a written acknowledgment of the letter before claim.
8. 2 A ‘reasonable period of time’ will vary depending on the matter. As a general guide –
   (1) D should send a letter of acknowledgment within 14 days of receipt of the letter before claim (if a full response has not been sent within that period);
   (2) where the matter is straightforward, for example an undisputed debt, then a full response should normally be provided within 14 days;
   (3) where a matter requires the involvement of an insurer or other third party or where there are issues about evidence, then a full response should normally be provided within 30 days;
   (4) where the matter is particularly complex, for example requiring specialist advice, then a period of longer than 30 days may be appropriate;
   (5) a period of longer than 90 days in which to provide a full response will only be considered reasonable in exceptional circumstances

Question 10

PD-PAC Annex A para 4: Detail of D’s full response to LbC

Answer 10

4. 1 The defendant’s full written response should –
   (1) accept the claim in whole or in part; or
   (2) state that the claim is not accepted.
5. 2 Unless D accepts the whole of the claim, the response should –
   (1) give reasons why the claim is not accepted, identifying which facts and which parts of the claim (if any) are accepted and which are disputed, and the basis of that dispute;
   (2) state whether D intends to make a counterclaim against the claimant (if so, provide information equivalent to a C’s letter before claim);
   (3) state whether D alleges that C was wholly or partly to blame for the problem that led to the dispute (if so, summarise the facts relied on);
   (4) state whether D agrees to C’s proposals for ADR (if not, state why not and suggest an alternative form of ADR (or state why none is considered appropriate));
   (5) list the essential documents on which D intends to rely;
   (6) enclose copies of documents requested by C, or explain why they will not be provided; and
   (7) identify and ask for copies of any further relevant documents, not in D’s possession and which D wishes to see.
6. 3 If D (or insurer) does not provide a full response within the period stated in C’s letter before claim (or any longer period stated in D’s letter of acknowledgment), and a claim is subsequently started, then the court is likely to consider that C has complied.
7. 4 If C starts proceedings before any longer period stated in D’s letter of acknowledgment, the court will consider whether or not the longer period requested by D was reasonable.

Question 11

PD-PAC para 8: Consideration of ADR

Answer 11

8. 1 Starting proceedings should usually be a step of last resort, and should not normally be started when a settlement is still actively being explored. Although ADR is not compulsory, the parties should consider whether some form of ADR procedure might enable them to settle the matter without starting proceedings. The court may require evidence that the parties considered some form of ADR…
9. 2 … some of the options for resolving a matter without starting proceedings are –
   (1) discussion and negotiation;
   (2) mediation …;
   (3) early neutral evaluation…; or
   (4) arbitration …
10. 3 …
11. 4 The parties should continue to consider the possibility of reaching a settlement at all times. This still applies after proceedings have been started, up to and during any trial or final hearing.

Question 12

PD-PAC para 9.2: Disclosure

Answer 12

Documents provided by one party to another in the course of complying with this Practice Direction or any relevant pre-action protocol must not be used for any purpose other than resolving the matter, unless the disclosing party agrees in writing.

Question 13

PD-PAC para 9.4: Experts

Answer 13

Where the evidence of an expert is necessary the parties should consider how best to minimise expense

Question 14

PD-PAC para 9.7: statement of compliance with protocol

Answer 14

Where proceedings are started the claimant should state in the claim form or the particulars of claim whether they have complied with Sections III and IV of this Practice Direction or any relevant protocol.

Question 15

PD-PAC para 4.5 and 4.6: sanctions for non-compliance with protocol

Answer 15

4.5 The court will look at the overall effect of non-compliance on the other party when deciding whether to impose sanctions.

4. 6 If, in the opinion of the court, there has been non-compliance, the sanctions which the court may impose include –
   (1) staying the proceedings until steps which ought to have been taken have been taken;
   (2) an order that the party at fault pays the costs, or part of the costs, of the other party or parties;
   (3) an order that the party at fault pays those costs on an indemnity basis;
   (4) if the party at fault is the claimant in whose favour an order for the payment of a sum of money is subsequently made, an order that the claimant is deprived of interest on all or part of that sum, and/or that interest is awarded at a lower rate than would otherwise have been awarded;
   (5) if the party at fault is a defendant, and an order for the payment of a sum of money is subsequently made in favour of the claimant, an order that the defendant pay interest on all or part of that sum at a higher rate, not exceeding 10% above base rate, than would otherwise have been awarded.

Question 16

r3.1(5): possible specific sanction for non-compliance with protocol

Answer 16

The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.

Question 17

PD-PAC Annex A para 3.1 and 2: D’s acknowledgment to LbC

Answer 17

3.1: Where the defendant is unable to provide a full written response within 14 days of receipt of the letter before claim the defendant should, instead, provide a written acknowledgment within 14 days.

3. 2 The acknowledgment –
   (1) should state whether an insurer is or may be involved;
   (2) should state the date by which the defendant (or insurer) will provide a full written response; and
   (3) may request further information to enable the defendant to provide a full response.

Question 18

PD-PAC para 4.3: assessing compliance

Answer 18

When considering compliance the court will –

(1) be concerned about whether the parties have complied in substance with the relevant principles and requirements and is not likely to be concerned with minor or technical shortcomings;
(2) consider the proportionality of the steps taken compared to the size and importance of the matter;
(3) take account of the urgency of the matter. Where a matter is urgent (e.g., application for an injunction) the court will expect the parties to comply only to the extent that it is reasonable to do so.

Question 19

r36.2.(2) and (3): Part 36 offer must …

Answer 19

2) A Part 36 offer must –
(a) be in writing;
(b) state on its face that it is intended to have the consequences of Section I of Part 36;
(c) specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs in accordance with rule 36.10 if the offer is accepted;
(d) state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue; and
(e) state whether it takes into account any counterclaim.

(3) Rule 36.2(2)(c) does not apply if the offer is made less than 21 days before the start of the trial.

Question 20

r 36.4(1): Part 36 must be what type of offer

Answer 20

Subject to rule 36.5(3) and rule 36.6(1), a Part 36 offer by a defendant to pay a sum of money in settlement of a claim must be an offer to pay a single sum of money.

36. 5: claim for damages for personal injury which is or includes a claim for future pecuniary loss.
37. 6: a claim which includes a claim for provisional damages.

Question 21

r 36.3(3): Part 36 offer inclusion of interest

Answer 21

A Part 36 offer which offers to pay or offers to accept a sum of money will be treated as inclusive of all interest until –

(a) the date on which the period stated under rule 36.2(2)(c) expires; or
(b) if rule 36.2(3) applies, a date 21 days after the date the offer was made.

Question 22

r36.14(2): If C fails to obtain judgment at more advantageous than D’s Part 36 offer

Answer 22

(1) … (a) C fails to obtain a judgment more advantageous than D’s Part 36 offer; or…

(2) Subject to (6), where rule 36.14(1)(a) applies, the court will, unless it considers it unjust to do so, order that D is entitled to –
(a) costs from the date on which the relevant period expired; and
(b) interest on those costs.

Question 23

r36.14(3): If C obtains judgment at least as advantageous than D’s Part 36 offer

Answer 23

1 …(b) judgment against D is at least as advantageous to C as the proposals contained in a C’s Part 36 offer.

(3) Subject to (6), where rule 36.14(1)(b) applies, the court will, unless it considers it unjust to do so, order that C is entitled to –
(a) interest on the whole or part of any sum of money (excluding interest) awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;
(b) his costs on the indemnity basis from the date on which the relevant period expired; and
(c) interest on those costs at a rate not exceeding 10% above base rate; and
(d) an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below (10% up to 500,000 then 5% above that) to an amount which is –
(i) where the claim is or includes a money claim, the sum awarded to C by the court; or
(ii) where the claim is only a non-monetary claim, the sum awarded to C by the court in respect of costs