Chap 10 Litigating 3rd P Liab Claims Flashcards
Claims tracks
Small fast multi track
Small track less than 10,000
Fast track less than 25000 (trial expected to last no longer than 1 day
Multi track - larger value - greater complexity
Civil procedure rules cpr
Apply to subrogation rights. When insurer is involved in dispute over coverage.
Aim of cpr to avoid litigation and encourage arbritration
Where any rules differ the ‘parts” take precedence
Key aspect of cpr is the case management judge who is responsible for overseeing the conduct of the case, makes procedural orders
Adr - alternatative dispute resolution
An alternative to reaching settlement
Arbritration
Binding
Mediation
Not binding
Part 26 of CPR defines rules for the allocation of cases
Rules intend to narrow down the issues between both parties before it goes to court, the court will allocate most to the fast track unless lawyer says otherwise.
The court will serve an allocation questionaire to both parties if one has filed a defense to thr claim and use this to make the allocation decision. They will have 14 days to complete it. If fails thr court can take what action it wants or may hold an allocation hearing
Pre action protocols - aim is to see claims settled quickly as poss
A collorary of pre action protocols is to use litigation as a last resort and reach settlement without a court hearing.
Different types of pre action protocols for diff claims
Pre action protocol for personal injury claims
Low value personal injury claims in road traffic accidents
Disease and illness claims
Low value pl and el claims
Resolution of clinica, disputes
Professional negligence
Construction and engineering disputes
Pre action protocol rules
Personal injury protocol must respond in… Days
Clinical neg protocol must respond in… Days
If desdline not met thr court decides the sanctions
Personal injury protocol 21 days to respond to the letter of claim, clin neg 14 days to respond
Court decides sanctions if desdline not met.
Number of classes which there are no pre action protocols
Examples, 3rd p motor vehicle damage claims
Subsidence damage to building caused by a neighboring tree or trees
Impact damage to a building
Water damage to a building
Claims under a fidelity or employee dishonesty policy incurred by a 3rd party
Practice direction exists tho to endure that steps are taken in the process, eg parties to act reasonable in ex changing info. A reasonable procedure suitable to their circumstances which is intended to avoid litigation. The procedure should not be a prelude to litigation
Protocols background
All broadly similar but tailored to the demands of each claim. In particular the time limits. All the protocols have the following in common;
Statement of the aims of the protocol
A list of steps to be followed when making or responding to a claim
Precise time limits
Detailed guidance on the info required to handle claim effectively
Advice that the parties should consider ADR approaches to the dispute or claim
Personal injury protocol
21 days to reply to letter of claim
Letter to defendent, second letter for insurers
Letter must be a clear summary of the facts claim is based on
Indication if nature of injuries, any financial loss incurred
In road traffic ax, name and address of hospital. Details of claimants dob and ni number to be supplied but not in the letter. If liab denied, evidence material to the denial to be supplied
If con neg is alledged, reasons to support this to be given
Claimant to respond to the allegations of con neg before proceedings are issued
Defendent to reply within 21 days of th letter
Insurer should reply advising whether liab admitted or denied
Max of 3 months to investigate
Claimant to issue special damages schedule where liab has been admitted as soon as practicable. Both parties to confirm use of expertd. Within 14 days either party to accept or reject the experts. Both parties as early as poss to consider the rehab code and identify claimants needs
Low value personal injury claims
Aim of protocol
Points to remember
Defendent pays damages and costs using process set out in the protocol without need for claimant to start proceedings
Damages are paid within a reasonable time
Claimants legal rep receives the fixed costs at an appropriate stage.
Main diff between this one snd the el pl protocol low value is communication for el pl to be done online portal (moj)usually referred to as the moj
Cprs are not identical, time limits vary, set out how to deal with claimants and lawyers. Cards all on the table approach
Negotiation
Part 36 offers
Negotiations are personal, differ between firms. To protect both partire there is a without prejudice clause meaninh both parties cannot rely on the negotiations in court.
Part 36 offers - at any stage in the claim either party may make an offer to settle. Judge not allowed to know of offer made or amount until after settlement. Puts preseure on parties to consider offer they they otherwise would not have accepted
Experts - 2 sorts available
Experts who give advice in evauating claim, liab, causation, estimate quantum
Expert opinion on evidence as part of the litigation process
