2): Pre-Action consideration and Steps

Question 1

What are the key preliminary considerations before starting a claim?

Answer 1

👤 Claimant: initiates the claim

🛡️ Defendant: has claim brought against them

✅ Defendant must be:
-Identifiable
-Traceable
-Solvent (to satisfy judgment)

Question 2

What are the preliminary considerations regarding the causes of action?

Answer 2

1. Identify legal basis (e.g. contract or tort)
2. Assess likelihood of success based on available evidence
3. Identify disputed issues and how to prove them
4. Give early advice on liability, quantum, and costs

Question 3

What are the limitation periods for claims in contract and tort?

Answer 3

1. Contract:
   -Starts: Date of breach
   -Limit: 6 years
2. Tort (not PI or latent):
   -Starts: Date damage occurs
   -Limit: 6 years
3. Tort – Personal Injury:
   -Starts: Later of date of injury or date of knowledge
   -Limit: 3 years
4. Tort – Latent Damage (non-PI):
   -Starts: date of damage/ knowledge of damage
   -Limit: 6 years from damage OR 3 years from knowledge
   -Maximum: 15 years from act of negligence

Question 4

Will the court allow claims started outside the limitation period?

Answer 4

No they are statute barred.

Question 5

What is the Practice Direction on Pre-Action Conduct and Protocols (PDPACP)?

Answer 5

Apply where no specific protocol exists

Aim to:
🤝 Encourage early settlement
⚖️ Avoid unnecessary litigation
🎯 Narrow issues before court proceedings

Question 6

What are the key steps under Pre-Action Protocols/PDPACP?

Answer 6

🤔 Consider ADR

✉️ Claimant writes with concise details of the claim

🛡️ Defendant replies in reasonable time:(accept/deny/counter)

📂 Exchange relevant documents

Question 7

What are the consequences for failing to follow Pre-Action Protocols and PDPACP?

Answer 7

Court may:

💸 Order party to pay opponent’s costs

💰 Award costs on indemnity basis

⛔ Deny interest on claimant’s award

📈 Add 10% interest to damages (defendant’s penalty)

Question 8

What are the limitations on the parties’ autonomy to select choice of law/governing law?

Answer 8

Courts may override choice of law where:

⚖️ Mandatory local rules apply

🛡️ Weaker party is protected by statute

🚫 Chosen law breaches public policy

❌ Choice is not bona fide

🏠 Entire contract is domestic in nature

Question 9

When does the European regime apply?

Answer 9

❌ It does not apply to claims started after 1 Jan 2021

Question 10

What is the jurisdiction for Common Law Rules?

Answer 10

✅ Apply from 1 January 2021

🛡️ English courts have jurisdiction if:
-Defendant is within the jurisdiction + validly served

Question 11

When may the English courts exercise jurisdiction?

Answer 11

🏠 Defendant domiciled in England
🏢 Property located in England
📜 Contract subject to English law/jurisdiction
💥 Tort occurred or caused in England
⚖️ Injunction relates to acts in England

Question 12

When may proceedings be stayed or jurisdiction declined?

Answer 12

🌍 A more appropriate forum exists
🤝 Parties agreed to use foreign court/arbitration
🌐 Dispute concerns foreign land or IP rights
🚫 Proceedings are an abuse of process

Question 13

When may a defendant lose/waive their right to contest jurisdiction?

Answer 13

⚖️ Taking a step inconsistent with objecting (e.g. filing defence)

✍️ Acting in a way that amounts to submission to the court