Pre-Action and starting a claim

Question 1

Judges and address?

Answer 1

Justice’s of supreme court, judges of CA - My Lord or My lady

High court judges, masters - my lord or my lady

County court - circuit judges, recorders, - Your honour

Deputy district judge and district judge - Judge

Question 2

Overriding objective?

Answer 2

Overriding objective
- Deal with cases justly and at proportionate cost

Question 3

Case analysis?

Answer 3

A case analysis is an investigation of legal issues to determine what must be proved or disproved
- Help inform clients decisions to bring a claim on merits of case
- Inform strategy of pursing case
- Assist to estimate the budget costs

Duty
- Did the D owe a duty to the claimant
- Is there a contract with express or implied terms
- Is there a tortious duty
Breach
- Is there a breach of contract or tortious duty to both
- Question of fact on evidence
Causation
- Did it cause the harm
Loss
- Remedy sought – was it enforceable
Parties
- Who should bring the claim
- Are there any actual or potential defendants who the defendant might seek a contribution or indemnify from
Limitation
- Any issues with limitation

• Burden of proving an issue generally falls on party who asserts it
• Balance of probabilities – if more than likely to have happened it will be proved

Question 4

Aims of pre-action protocols?

Answer 4

Aims of pre-action protocols
- Force parties to have a more cards on the table approach to resolving the dispute.
- Without involving the courts
- One expectations of pre-action are that they consider whether negotiation or another form of ADR might allow them to avoid proceedings. Silence in response to an opponent’s suggestion of ADR can be deemed as unreasonable conduct.

Question 5

Consequences of non- compliance?

Answer 5

Consequences of noncompliance –
- Court will decide if it merits adverse consequences
- Most likely relate to costs and interest
- Court may also stay proceedings until relevant steps are taken
Is non-compliance ever justified?
- Where a limitation period is about to expire – may be necessary to issue proceedings before there is time to comply with pre-action. Ordinarily will need to apply for a stay in proceedings after issue in order that ore-action can be followed
- Whether there is another reason – like element of surprises.

Question 6

Practice direction applies to?

Answer 6

All cases, but where a specific protocol applies the provision will override any conflict with the practice direction.

Practice direction
- Claimant should write to potential defendant to give details of the claim – LETTER OF CLAIM
- Within a reasonable time – defendant should send a response letter – this must either ACCET OR REJECT CLAIM GIVING REASONS
- Parties should disclose key documents and engage in appropriate negotiations and make proposals for settlement

Question 7

Pre-action protocol for personal injury claims applies to?

Answer 7

Personal injury claims
Which do not fall within another pre-action protocol
and which are likely to be allocated to the fast track

Example of pre-action protocol for personal injury claims
- Claimant should write a letter of notification to potential defendant giving brief details to enable defendant to notify insurer
- Parties consider any rehabilitation needs and how to address them
- Claimant should write to defendant to give full details on the claim
- Defendant to acknowledged letter of claim within 21 days
- Defendant to investigate and send full letter of response within 3 months of letter acknowledging claims – if defendant denies liability or sums

Question 8

Limitations

Answer 8

• If proceedings not commenced within relevant limitation period – claimant will be barred from recovering damages – as such defendant will have a full defence

Question 9

Personal injury limitaion?

Answer 9

Personal injury
- Claimant must make a claim within 3 years of the latest of
- Date of action accrues or
- Date of knowledge of person injured
Fatal accidents
- If someone dies, people who were depending on that employee can claim compensation from employer.
- Claim cannot be brought if person injured could no longer bring a claim
- Claim cannot be brought after 3 years of
o Date of death
o Date of knowledge of dependents
Date of knowledge
Knowing that:
- Injury was significance
- Was attributable to alleged wrongdoing
- Identify of defendant
- If it’s alleged that the wrongdoing was by someone other than defendant – that the identity of that person and additional facts supporting bring the claim against the defendant.
Extensions of time
- Court can extend time in relation to personal injury claims or fatal accidents act if it would be equitable to do so
- Court will look at conduct of parties
- Reasons for delay
- Effect of such late claim on evidence

Question 10

Limitation for contribution?

Answer 10

• If two sources are liable – if claimant claims against a retailer, they may be entitled to claim a contribution towards that liability from manufacturer
• Limitation date is 2 years from the date on which the right to recover the contribution arose
• The date when judgement was given imposing liability on first party
• If the parties agreed to make payment – the date on which the amount to be paid was first agreed

Question 11

Latent damage limitation?

Answer 11

damage
- NOT APPLY TO PERSONAL INJURY – AND THE ABOVE TAKES PRECEDNECE
- Sometimes an act of negligence causes damage that claimant may not be aware of for a long time
- In negligence claims – NOT PERSONAL INJURY

In negligence claims other than personal injury

6 years form when cause of action accrued
3 years from when he had the requisite knowledge and right to bring a claim

Question 12

In negligence claims that ARE NOT PERSONAL INJURY?

Answer 12

In negligence claims (other than claims for personal injury), the limitation period is extended to the
later of:
(a) Six years from when the cause of action accrued; or
(b) Three years from when he had the requisite:
(i) knowledge; and
(ii) right to bring a claim. (s14A)
But this is subject to a long-stop limitation date of 15 years from the date of the latest negligent
act / omission which caused all or part of the damage (s14B).

Question 13

Action to enforce a judgement and tort and contract claims?

Answer 13

An action to enforce a judgement
- Cannot be brought after 6 years from when judgement became enforceable
Tort and contracts claim
- An action in tort – limitation period expires after 6 years after the date on which the cause of action accrued
- Likewise for contract

Question 14

Fraud?

Answer 14

• Doesn’t begin until claimant discovered the fraud

Question 15

ADR types?

Answer 15

Negotiation
- Communication between parties, intended to reach a compromise or agreement
Mediation
- Confidential process, intended to facilitate the resolution of dispute through a medium of an impartial third party. Generally, each party will be present in same location but in different rooms. Mediator will move between rooms. Encourage each party to reach a decision.
Arbitration
- Resolved by an impartial adjudicator whose decision the parties of dispute have agreed will be final and binding
- The question of whether to arbitrate or not occurs at two key stages
- When negotiating a contract, the parties may decide to include an arbitration clause in their agreement
- When a dispute has arisen, the parties can choose to deal with it by way or arbitration
- Can be JUST AS COSTLY AS LITIGATION – DOESN’T PRSERVE RELATIONSHIP
- BUT IT IS PRIVATE
- CAN AGREE FLEXIBILE OUTCOMES
Med-arb
- Process by which initially agree to try and solve through mediation and if not satisfactory move to arbitration
Early neutral evaluation/expert appraisal/expert evaluation
- Where an independent party is appointing by the parties.
- Will provide a non-binding assessment of the matter referred to it
- Parties will have to pay them for their time and costs
Expert determination
- Satisfactory where a technical knowledge is required
- Binding determination
Conciliation
- Involves an independent neutral third party in helping parties to resolve their dispute.

Court expects parties to explore ADR
- Preserves or creates a better relationship between the parties
- Can aid in preserving relationships
Less expensive
Greater privacy
Less disruption to clients
Outcomes that reflect risk
Greater control over process
Greater involvement of parties themselves

Question 16

ADR timing and judicial encouragement?

Answer 16

Timing
- A contract may specify
- ADR can only be commended at particular times
Timing of ADR
Earlier the better
- Cost saving
- Better relationships and information
Factors suggesting later
- Parties will better understand each other’s case
- If ADR is attempted later the parties will better understand the evidence that each party has available but it will rarely be justifiable in advance
Pre-action protocol requires the consideration of ADR in settlement before

How does court encourage parties to engage in ADR
- Court can provide info about court
- Encourage parties to consider and engage in it
Costs
- Reward positive ADR behaviour with a costs order
- Unreasonable refusal to engage in ADR.
Record a settlement
- In a form of contract
- Giving up rights in dispute for some kind of agreement
- Need a consent order for court approval + settlement order
- Tomlin order – DOES INCLUDE COURT ORDER -+ settlement order

Question 17

Where to issue a claim?

Answer 17

• If value of claim is greater than 100,000 it may be commenced in either court
• If value is 100,000 or less MUST be in county court
• For person injury its less than 50,000 MUST BE in county court
• Value of claim is its financial interests
• Disregard, interest, costs, any counter claim, any contributory negligence, any deduction of social security benefits.

Transfer between courts
- If court disagreed court may consider whether it should remain in the court of issue and may transfer. CPR 30
- Consequences of getting this wrong – may make claimant pay transfer costs
- 25% of cost awarded in claim can be deducted – if in high court when it shouldn’t be, at courts discretion

Question 18

How to Issuing proceedings?

Answer 18

• Claimant solicitor must send following to court:
  o One copy of completed claim form for court
  o One copy for every defendant
  o One copy for claimant to keep in its own file
  o Court issue fee
  Date of issue is important because it stops time running for limitation purposes and starts clock for time in which claim form must be serves.
  Starts a deadline for when deadline of claim form must be served on defendant.
  In high court
• Court issues a claim form by entering a date of issue, giving case number and sealing all copies of claim form

Question 19

In either courts how are claim forms issued?

Answer 19

In high court
- Court issues a claim form by entering a date of issue, giving case number and sealing all copies of claim form
In county court
- County court money claims are issues centrally
- Most should be issued in county court money claims centre, a centre that manages it until a hearing is requires. Done by sending the claim form N1 and fee to county court money claims centre.
- Claims which are not money only can be issued at any of the county court hearing centres by sending in claim form and fee.
Money claim online – online service provided by HMCTS- UP to 100,000

Question 20

Service of claim form?

Answer 20

Service is process of giving a document to another party in an action recognised by court
Service of claim form
Who will affect service of claim form
May be served by either
- Court
- Or claimant/claimant’s solicitor
- If court wishes to do so – usually by first class post – once done so it will send claimant a notice of issue stating the deemed date of service
- The claimant effects service (explained below). The claimant’s solicitor must then file a certificate of service at court within 21 days of service, certifying details of the date on which the claim was posted/delivered/transmitted and the method and address used (CPR 6.17).
How should service be affected?
- Personally, on defendant
- Leaving document at permitted address
- First class post
- Document exchange
- Fax
- Other electronic method

Question 21

DEADLINES FOR CLAIM FORM AND PARTICULARS OF CLAIM?

Answer 21

When must it be served?
Time limit for service of the claim form – must be before 12midnight on the calendar day 4 months after the date of issue
- Extension of time to serve the claim form
- Can apply to court for an extension under 7.6 – but very strict
- Must be made within the 4-month period – and need to show good reasons for extension
- If application is made after deadline, then only granted it court failed to serve the claim form or claimant has taken all reasonable steps to comply or the application has been made promptly.
- Then new claim form must be issued.

Service of particulars of claim
- Where claimant sets out this claim in detail
- If served with claim form, the claimant must also serve the response pack along with the claim form and particulars of claim 7.8. The response pack FORM N9 contains-
- Form for admission
- Form for defending
- Form for acknowledging service
If not included with claim form particulars of claim must be served within 14 days of claim form and within the 4-month period mentioned earlier.

Once particulars of claim are serves, claimant must file a copy at court within 7 days of service.

Question 22

Deemed date of service?

Answer 22

FOR THE CLAIM FORM
* For the claimant: because the time limit for serving the particulars of claim (if the particulars of
claim are not included within or served with the claim form) runs from the deemed date of
service of the claim form; and
* For the defendant: because the deadline for serving a response to the claim form (if the
particulars of claim are included within it or served at the same time as it) runs from the
deemed date of service of the claim form.
A claim form is deemed served on the second business day after completion of the “relevant
step” (CPR 6.14)

So if posted before 4:30 on business day. That WILL COUNT AS A BUSINESS DAY.

FOR THE PARTICULARS OF CLAIM
Instant methods (personal service, fax, email, delivering/leaving at a permitted address. If
done before 4.30pm on a business day: deemed served the same day. Otherwise: deemed
served the next business day
* Not-instant methods (Post / DX) Deemed served second day after posting / giving to DX
provider, if a business day. Otherwise: deemed served the next business day

Question 23

Rules in relation to statements of case? Case heading?

Answer 23

The court or division on which the claim is proceeding
Number of the proceedings
Full name of each party
Party’s status in the proceedings

A statement of truth
- CPR 22.1 – only if verified by a statement of truth can it be used as evidence in proceedings
- Way of signing everything to be true

Question 24

Claim form? Purpose and details?

Answer 24

Purpose:
- To commence proceedings
- BRIEF document
- Sets out names and addresses.
Structure
- On form N1 – so the from dictates the structure
Contents
- Parties – names and addresses
- Claim details - concise statement of nature of claim – very brief summary of type of claim – NOT TO BE CONFUSED WITH PARTICULARS OF CLAIM
- The remedy sought by the claimant
- A statement of the amount claimed or if it’s an unspecified amount
If issued in high court
- State the claimant expects to recover more than 100,000
- Some other enactment provides claim may be commenced only in high court
- State that the claim is to be in one of the specialist high courts

Question 25

Particulars of claim?

Answer 25

Purposes
- Sets out claimants’ case in full detail
- This is the main statement of case
Contents
- General
- A concise statement of the facts and must cover essential elements of the claimant cause
- Set out all material facts and allegation
- And any facts that tell a story
- NOT PURPOSE TO SET OUT LAW, EVIDENCE OR ARGUMENTS
- Specific
- Set out any aggravated damages
In personal injury claims, should include claimants date of birth, details of injury’s and attached a schedule of past and future expenses losses and report of any expert medical practitioner
- A claim in relation to possession occupation of law must identify the land and make it clear whether it includes residential premisses
- Where it’s based on a written agreement it should be attached

Contents – interest
- Claimant has a right to claim interest on the principal amount being claimed – to compensate for delay in receiving money. A statement to that effect must be set out in particulars of claim
Legal basis for claim for interest
- Set out on a contract between the parties
- There is a statutory right to interest
- Two ways of claiming interest
- Calculating exact amount
o Only if claimant is making a specified claim
o Applicable percentage rate
o Dates from/to which interest being claims
o Total amount claimed up to the issue of the claim form
o Daily rate of interest thereafter.
- Or claiming interest generally
o Unspecified claim – loss of goodwill, damages to reputation, loss of future earnings or profits

Question 26

Interest calculation?

Answer 26

Statutory interest claims
Where the claimant relies on section 35A Senior Courts Act 1981 in the High Court and section 69
County Courts Act 1984 in the County Court, the following principles apply to the award of
interest:
* Generally, the court has a discretion as to whether to award interest, and how much, from the
date the cause of action accrued until judgment (or until payment, if before judgment).
Different provisions cover interest after judgment (if the judgment sum is not paid), and these
are outside the scope of this section.
* In personal injury claims where damages over £200 are awarded, some interest must be
awarded unless there are special reasons for not doing so, but the amount is still in the court’s
discretion.
* In debt claims, if the defendant pays the whole debt during the proceedings, some interest
must be awarded, but the amount is still in the court’s discretion

Question 27

Disability limitation?

Answer 27

If claimant is under a disability at the time that the cause of action accrued the limitation period starts to run from when the disability ends and is

2 years for ocntirbution claims
3 years in personal injury
6 years in other cases

A person is under a disability whilst they are a minor or lack mental capacity.

If they’re a minor. IT WILL BE FROM THEIR BIRTHDAY OF 18.