3. Pre-Action Considerations: Protocols and Applications

Question 1

What is the purpose of the pre-action protocols?

Answer 1

To focus the parties on trying to settle the dispute without litigation early and clearly.

If litigation proceeds, it should be done clearly and with reasons.

Question 2

Do protocols have the same status as Civil Procedure rules?

Answer 2

No, protocols are not rules

Question 3

Where no specific protocol exists, what will the courts expect a litigant to follow?

Answer 3

Practice Direction on Pre-Action Conduct and Protocols.

Where a specific protocol applies, these provisions override the Practice Direction.

Question 4

What does the Practice Direction require?

Answer 4

1. Claimant should write to defendant with concise details of claim (Letter of claim)
2. Defendant should respond within a reasonable time (14 days if straightforward case; no more than 3 months if complex) either accepting or rejecting the claim
3. Parties should disclose key documents and engage in appropriate negotiations
4. Court must give permission before an expert can be relied on

Question 5

The personal injury protocol is primarily used for claims in what track, and what type of cases does it not apply to?

Answer 5

Fast track (value of up to £25,000 - the spirit of the protocol should be followed in higher value claims).

Does not apply to clinical negligence.

Question 6

What is the pre-action protocol for PI claims?

Answer 6

1 - Claimant should write Letter of Notification to potential defendant giving brief details, to enable defendant to notify its insurer.
2 - Parties consider any rehabilitation needs (i.e. any ongoing medical and care needs) and how to address them.
3 - Claimant should write to defendant to give full details of the claim (Letter of Claim).
4 - Defendant to acknowledge Letter of Claim within 21 days.
5 - Defendant to investigate and send full Letter of Response within 3 months of letter acknowledging claim. If the defendant denies liability or quantum (or both) then…
6 - The parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement. Claimant should send schedule of losses giving details of losses.
7 - Joint selection of quantum expert (i.e. medical expert), or claimant discloses report and defendant sends written questions.

Question 7

What four things does the template letter of notification of claim under the personal injury protocol include?

Answer 7

1. Summary of facts
2. Details of injuries and impact on day to day life
3. Hospital attended
4. Indication of financial losses as known at this stage

Question 8

Within what time frame should a defendant respond to a letter of claim under the personal injury protocol?

Answer 8

21 days

Question 9

What is the option for the claimant if defendant does not respond to the letter of claim, and what is the option for the defendant if they do respond to the letter of claim?

Answer 9

D doesn’t respond: C can start proceedings
D does respond: D has three months to investigate the claim

Question 10

How long does the defendant have to disagree with a list of suggested experts sent by the claimant?

Answer 10

14 days

Question 11

If the protocol fails to achieve settlement, how long must the claimant wait before commencing proceedings, in order to allow defendant to make an offer? In what instance is this requirement to wait waived?

Answer 11

21 days.

Waived if the limitation period will expire imminently.

Question 12

What are the consequences of not complying with a pre-action protocol?

Answer 12

The court will consider non-compliance when giving directions for the management of proceedings or when making orders for costs

Question 13

Does the court have discretion to relieve a party of their obligation to comply with the protocols?

Answer 13

Yes

Question 14

What are three situations where the court is unlikely to criticise issuing proceedings before compliance with a protocol?

Answer 14

1. Where the end of the limitation period is close (parties should comply to the extent possible and apply for a stay)
2. Where a court order is required to protect or preserve evidence of assets (need for urgency or element of surprise)
3. Where there is concern the defendant may seek to issue proceedings in another country

Question 15

What are the most likely consequences of failing to follow pre-action protocols?

Answer 15

• costs and interest – increasing the amount of costs / interest to be paid / decreasing the amount to be received.
• court may stay the proceedings until the relevant steps are taken (Practice Direction).
• court can ask for an explanation of non-compliance.

Court will consider the overall effect of the non-compliance on the other party and it is unlikely that sanctions will be imposed for minor infringements.

Question 16

What are the three criteria to satisfy in order to receive pre-action disclosure?

Answer 16

1. Applicant and respondent are likely to be a party to proceedings
2. The documents would be disclosed under standard disclosure rules
3. Disclosure now would assist in disposing the claim without proceedings

Question 17

In what instances can pre-action disclosure be sought from a non-party?

Answer 17

Only if it will support the claim or adversely affect the opponent’s claim

Question 18

One of what two criteria must be satisfied for pre-action disclosure of property?

Answer 18

The property is:

1. Or may become the subject matter of proceedings
2. Relevant to the issues that will arise in proceedings

Question 19

What claims does the Pre-Action Protocol for personal injury claims apply to?

Answer 19

PI claims likely to be allocated to the ‘fast track.’

Question 20

What are the steps parties are expected to undertake under the Professional Negligence Pre-action Protocol?

Answer 20

1) where claimant has reasonable chance of bringing claim against potential defendant, send a Preliminary Notice.
- 21 days to acknowledge service.
2) When Claimant decides on the grounds, sends Letter of Claim.
3) Other side has 3 months to investigate claim.
- respond with either a Letter of Reponse or settlement offer.
4) Where D admits part of claim or makes a settlement offer, then parties have maximum of six months to negotiate a settlement
5) Otherwise, if C disagrees, sends written notice 14 days notice before issuing proceedings.

Question 21

What are the steps parties are expected to undertake under the Construction and Engineering Disputes Pre-action Protocol?

Answer 21

1)Letter of claim
2) Within 14 days, D acknowledgement receipt, and may give name/address of insurer.
3) Within 28 days, D sends a letter of reponse - setting out position and any counterclaim.
4) Within 21 days, C responds to counterclaim (if any).
5) Pre-action meeting takes place - within 21 days of response by C.
6) After meeting, protocol process is concluded.

Question 22

What does the Personal Injury Pre-Action Protocol provide where an accident occurred outside of England and Wales and/or the defendant is outside the jurisdiction, as it concerns service of a letter of claim?

Answer 22

Defendant should acknowledge the Letter of Claim within 42 days and has 6 months to investigate claim and confirm its position.
- basically double the time