Pre-action considerations and conduct Flashcards
(19 cards)
Pre-action protocols
Court rules set out certain procedures that it expects parties to follow before issuing proceedings which are set out in pre-action protocols, each of which applies to a specific type of dispute.
‘Practice Direction – Pre-Action Conduct and Protocols’
covers all cases regardless of whether a protocol applies.
If provisions in the designated pre-action protocol conflict with those in the Practice Direction…
the specific protocol will take priority.
Main aims of Pre-action conduct:
Resolving the dispute without involving the courts.
Enabling the parties to obtain information they need to settle the matter at the earliest possible opportunity and, if settlement is not achievable, to lay the foundations for expeditious conduct of proceedings.
To consider whether ADR might allow them to avoid proceedings.
Pre-action requirements:
Generally, require a letter of claim setting out the claim and attaching key documents, a letter of response within a specified period, the parties trying to engage in ADR where possible, and a ‘stocktake’ before the issue of proceedings.
Consequences of non-compliance:
At Court’s discretion whether non-compliance with pre-action protocol merits adverse consequence.
Most likely consequences relate to costs and interest; court may also stay proceedings until relevant steps are complied with.
Court will consider the overall effect of the non-compliance on the other party.
Unlikely that sanctions will be imposed for minor infringements.
There are limited circumstances in which it may be acceptable not to comply with pre-action requirements:
a) Where a limitation period is about to expire.
b) Where there is another reason for urgent proceedings or for the element of surprise.
Personal Injury
3 years from:
a)the date when the cause of action accrued; or
(b)the date of knowledge of the person injured.
Fatal accidents
3 years from:
i. Date of death
ii. The date of knowledge of the dependent.
Contribution
2 years from the date on which
the right to recover the contribution arose.
Negligence
(a) 6 years from the date when the cause of action accrued; or
(b) 3 years from the date when he had the requisite:
i. knowledge; and
ii. right to bring a claim.
Maximum - 15 years from the latest of date of accruement or knowledge.
Judgments
6 years from the date when the judgment became enforceable.
Tort + Contract
6 years from the date on which the cause of the action accrued.
Date of knowledge means knowing:
(a)That the injury was significant.
(b)That it was attributable (at least in part) to the alleged wrongdoing.
(c) The identity of the defendant.
(d)If it is alleged that the wrongdoing was by someone other than the defendant, the
identity of that person and the additional facts supporting bringing the claim against
the defendant.
For fatal accident claims, date of who’s knowledge?
from the perspective of the dependent but the injury referred to is obviously the
fatal injury to the deceased.
Can court extend time for PI/fatal accident claims?
Yes, if it would be equitable, balancing the prejudice to the claimant caused by the limitation period with any prejudice to the defendant which allowing the claim
would cause.
The court will look at:
* the conduct of the parties.
* the reasons for the delay; and
* the effect of such a late claim on the evidence.
Negligence actions where facts relevant to the cause of action are not known at the date
of accrual:
so applying the ‘usual’ 6-year rule, limitation would expire before the claimant is even aware of a problem. Hence, date can be from knowledge of action.
Disability:
A person is under a disability whilst they are a minor (under the age of 18) or lacks
mental capacity.
The limitation period starts to run from when the disability ends, and is:
(a) 2 years in relation to contribution claims.
(b) 3 years in relation to personal injury or fatal accident claims; and
(c) 6 years in most other cases.
Fraud / concealment / mistake:
Where a claim is:
(a)based on fraud: or
(b)any fact relevant to the cause of action has been deliberately concealed by the defendant; or
(c) the action is for relief from the consequences of a mistake; then limitation does not start to run until the claimant discovered the fraud, concealment or mistake.
