Pre-Action Considerations/Conduct Flashcards
(27 cards)
What is the consequence of missing a limitation period?
The claimant is barred from recovering damages, and the defendant has a complete defence.
What is the general limitation period for contract and tort?
Contract: 6 years from date cause of action accrued (s5)
Tort: 6 years from accrual (s2)
What is the limitation period to enforce a judgment?
6 years from when the judgment became enforceable (s24)
What is the limitation period for a claim for contribution?
2 years from when the right to recover contribution arose (s10)
What is the limitation period for personal injury claims (s11)?
3 years from the later of:
- Date of accrual
- Date of knowledge (s14)
What is the limitation period under the Fatal Accidents Act (s12)?
3 years from the later of:
- Date of death
- Date of knowledge of the dependent
What is “date of knowledge”
Date claimant knew:
- Injury was significant
- It was attributable to wrongdoing
- Identity of defendant
- Any third party identity if relevant
Whose knowledge is relevant in Fatal Accident Act claims?
- The dependent’s knowledge, regarding the deceased’s fatal injury.
What is the rule under s14A for latent damage (non-PI claims)?
Claim must be brought by the later of:
- 6 years from accrual
- 3 years from claimant’s knowledge
What is the long-stop under s14B for latent damage?
15 years from the date of the latest negligent act or omission.
What is the test for knowledge?
Knowledge of material facts about the damage (not legal knowledge or awareness of the claim).
When can the court extend the limitation period for PI and fatal accidents?
Under s33, if equitable considering:
- Conduct of the parties
- Reason for the delay
- Effect on evidence
When is limitation postponed due to disability (s28)?
Limitation starts when disability ends.
Disability includes:
- Being under 18
- Lacking capacity under Mental Capacity Act 2005
What are the time limits after a disability ends?
- 2 years (contribution claims)
- 3 years (PI/fatal accidents)
- 6 years (other cases)
When is limitation extended due to fraud, concealment, or mistake (s32)?
Time starts from when the claimant discovers (or should have discovered) the fraud/concealment/mistake.
What is the general rule about pre-action conduct?
Litigation should be a last resort; parties must try ADR and act reasonably before issuing proceedings.
What are the two key sources of pre-action requirements?
- Practice Direction – Pre-Action Conduct and Protocols
- Specific pre-action protocols (e.g., for personal injury/construction claims)
What is the aim of the pre-action protocols?
Encourage early settlement, clear communication, and efficient dispute resolution through early disclosure and negotiation.
What are parties expected to do before issuing proceedings?
- Exchange information/documents
- Consider ADR
- Send/Respond to letter of claim
- Take stock of their position
What sanctions may the court impose for failing to comply with pre-action conduct?
- Cost penalties
- Interest penalties
- Stay of proceedings
- Adverse inferences
Will the court penalise minor pre-action breaches?
No. It considers the overall effect of non-compliance on the other party and requires serious breaches for sanctions.
Can non-compliance ever be justified?
Yes, e.g., where limitation is about to expire or where surprise/urgency is required (e.g., search orders).
When does the Personal Injury Protocol apply?
- Personal injury cases
- Likely to be allocated to fast track (≤ £25,000)
- No more specific protocol applies
What are the key steps in the PI Pre-Action Protocol?
- Letter of Notification
- Consider rehabilitation
- Letter of Claim
- Letter of Acknowledgment (21 days)
- Letter of Response (within 3 months)
- Disclosure and negotiation
