Civil courts and other forms of dispute resolution - Pre-trial procedures

Question 1

Explain the process of taking a civil action to court (pre action protocol)
Explain the process of taking a civil action to court (pre action protocols/pre trial procedure). (8 marks)

Question 2

What legislation introduced pre-action protocols and what did this do

Answer 2

Introduced by the **Civil Procedure Rules 1999 **which encourage parties to cooperate with each other and enable as much to be done before the trial as possible.

Question 3

The appropriate pre-action protocol must be followed. What does pre-action protocol involve

Answer 3

Most people making a claim do not want to start a court case unless they have to. They will first of all try to negotiate an agreed settlement with the person who caused their injuries or damaged their property. Using a method other than going to court is known as ADR.
Parties are encouraged to give information to each other in an attempt to prevent the need for many court cases to be started. So before a claim is issued, especially in personal injury cases, a pre-action protocol has to be followed. This is a list of things to be done and if the parties do not follow the procedure and give the required information to the other party, they may be liable for certain costs if they then make a court claim.

Question 4

What is pre-action correspondence and what is the aim of it

Answer 4

A period of negotiation before proceedings in which they discuss the details with each other and to cooperate in making pre-action investigations regarding evidence.

Question 5

Broadly speaking, what will occur during the pre-action correspondence

Answer 5

• After receiving instructions to act from a client, a solicitor will usually enter into correspondence with the other side in any action
• There is usually a period of negotiation before proceedings are commenced.
• Both sides of the dispute are expected to discuss the details with each other and to cooperate in making pre-action investigations regarding the evidence.
• This will enable both sides to be in a position where offers to settle the claim can be made at an early stage without needing to go to court.

Question 6

What is the next step to the pre-action protocol

Answer 6

Letter of claim

Question 7

What is a letter of claim

Answer 7

Pre-action protocol dictates that a detailed letter known as a letter of claim be sent to the defendant outlining the reasons for brining the case.

Question 8

In order for the letter of claim to ensure a swift resolution of the claim, what must be done within the letter

Answer 8

Liability must be outlined clearly in the letter of claim.

Question 9

Why is the letter of claim important

Answer 9

Because it not only acts as a detailed outline of the case, but it also serves to initiate the claim.

Question 10

What is the next step of the pre-action protocol

Answer 10

Standard Disclosure Procedure

Question 11

What is the standard disclosure procedure

Answer 11

This is where each party must make and serve on every other party a list of documents

Question 12

What is the next step of the pre-action protocol after standard disclosure procedure

Answer 12

Response to a letter of claim

Question 13

What is the time limit based around pre-action protocol procedure

Answer 13

Pre-action protocol procedure is based around the time limit of 21 days

Question 14

What happens if the defendant does not respond to the letter of claim within that time

Answer 14

The claimant must instigate legal proceedings.

Question 15

What happens if the defendant DOES respond to the letter of claim within the time limit

Answer 15

The claimant must allow three months to have the claim investigated on his behalf during which time the claimant will have his own investigations undertaken.

Question 16

What happens if the defendant admits liability after the three months time limit

Answer 16

An attempt to settle the claim through a part 36 offer (without prejudice) should be made. If the case is settled by this proposal then the case is concluded.

Question 17

If the defendant does not admit liability after three months time limit, what must happen

Answer 17

A solicitor must be instructed to institute proceedings by filing and serving a claim form called N1 and the Particulars of Claim.

Question 18

Then what must the defendant do

Answer 18

The defendant should enclose with the letter of reply to the claimant or his solicitor, documents in his possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings

Question 19

What is the next step once a defence has been filed

Answer 19

Allocation Questionnaire:
Once a defence has been filed, the court will use its powers of case management by sending out an allocation questionnaire - Form N150 - to each party.
If it is clear that the case is destined for the small claims track, form N149 will be used instead.
The parties have 14 days to return the allocation questionnaire and the claimant must also pay the allocation fee.
The court will allocate the case to one of three tracks, based on the infomation contained in the allocation questionnaires.

Question 20

Under what act and section may the court hold an allocation hearing if it is not clear which track the case should be allocated to

Answer 20

Under CPR 26.5 (4)

Question 21

What is a part 36 offer

Answer 21

A party involved in litigation can adopt a pro-active, tactical approach by making what is known as a part 36 offer.
The general principle is that the person making the offer does so in good faith, with the offer being made as part of a genuine attempt to settle the case.
An offer being made as part of a genuine attempt to settle the case not in court.

Question 22

Why will any part 36 offer not been seen by the court until after judgement of the case

Answer 22

Part 36 offers deals with offers made on a ‘without prejudice’ basis, which means any part 36 offers will not be seen by the court (if the case gets that far) until after the judgement has been made and an appropriate level of compensation awarded by the judge.

Question 23

Any offers on the value of the claim are intended to be without any admission on liability; what does this mean

Answer 23

This means that when an offer to settle the claim is made, the party making it does not necessarily admit liability.

Question 24

A part 36 offer can be accepted within how many days of it being made

Answer 24

21 days

Question 25

What is the potential risk of not accepting the part 36 offer

Answer 25

If the judge awards less compensation than the amount that was suggested in the part 36 offer then the claimant will only be entitled to this lesser amount.
The judge might also order the claimant to pay the defendants legal costs from the date of when they could have accepted the part 36 offer (i.e 21 days after the offer was first made)