Stage 1 - Pre-commencement

Question 1

What is limitation?

Answer 1

The strict time limit imposed on a claimant that determines the last date on which they can issue proceedings against a defendant in relation to a cause of action.

Question 2

What happens if a limitation period is missed/exceeded?

Answer 2

Unless there are exceptional circumstances, that is the end of the matter as the claim will be ‘statute barred’. If a party has missed the limitation period, the defendant will have a technical & complete defence to the claim [which is that it’s statute barred]. This means that, if the court agrees the claim is statute barred, the claimant will not succeed in the litigation & the court will not allow the case to proceed.

Question 3

Can the limitation deadline be extended?

Answer 3

The court has discretion to extend the deadline but will only do so in exceptional circumstances. [for instance, D has just won the lottery, so cl decides to pursue action against them for a sexual assault that occurred 10 years ago = court allowed extension in this case]

Question 4

For a contract case, when does a cause of action accrue from (start)?

Answer 4

• When the breach of contract occurs
• This is a question of fact, to be determined by court.

Question 5

For a tort case, when does a cause of action accrue from (start)?

Answer 5

• When damage occurs as a result of breach of duty?

Question 6

Simple contract case limitation period

Answer 6

6 years from the date of the breach of contract [breach = the actual breach itself, not discovery of the breach]

Question 7

Simple tort case limitation period

Answer 7

6 years from the date the damage occurred

Question 8

Latent damage (in the tort of negligence) limitation period

Answer 8

6 years from the date the damage occurred
OR
3 years from the date on which the claimant first had the knowledge required to bring an action
OVERALL: no more than 15 years from the date of the negligent act or omission.

Question 9

Tort (personal injury) limitation period

Answer 9

3 years from:
1. The date of the cause of action, OR
2. The date of the knowledge of the person injured (knowledge = first date when the claimant knew, or might reasonably be expected to have known, certain specific facts. These include the seriousness of his injury, its cause, and the identity of the defendant.)

EXCEPT for children - accrues from their 18th birthday.

Question 10

When is a defendant not worth suing?

Answer 10

If they’re on the verge of bankruptcy/liquidation

If D is struggling financially, u can still technically make a claim against them (it is possible) - but it’s not viable.

Question 11

If a lawyer is encouraging a client to pursue a claim which they know the cl has a low prospect of succeeding in…

Answer 11

They will not be acting in the best interests of their client.

Question 12

What is a cause of action?

Answer 12

The legal basis of a claim, such as breach of contract or negligence (these are examples of causes of action). Can be gleaned from the available evidence given by cl/witnesses.

Question 13

What is the purpose of damages in a contract claim?

Answer 13

To put the claimant in the position they would have been in had the contract been properly performed.

Question 14

What is the purpose of damages in a tort (negligence) claim?

Answer 14

To put the claimant in the position they would have been in had the negligent act not occurred.

Question 15

What is the purpose of damages in a tort (nuisance) claim?

Answer 15

To put the claimant in the position they would have been in had the nuisance not occurred.

Question 16

What is the purpose of damages in a contract (misrepresentation) claim?

Answer 16

To put the claimant back to the position they were in before the contract was entered into.

Question 17

What is an exclusive jurisdiction agreement?

Answer 17

a clause that limits a dispute to the courts of one jurisdiction

Question 18

Where there is an exclusive jurisdiction agreement, which country has jurisdiction?

Answer 18

Whichever one is agreed on in the clause.

Question 19

What if there isn’t an exclusive jurisdiction agreement?

Answer 19

Common law rules apply instead.

Question 20

What are the common law rules regarding jurisdiction?

Answer 20

• If D is served claim form in England/Wales, an English/Welsh court has jurisdiction.
• If the defendant is outside England and Wales, the claimant must get permission from the court to serve them abroad.

Question 21

When would court permission be granted to serve proceedings on a D abroad?

Answer 21

• The contract was made, broken, or governed by English law.
• The contract says disputes must be heard in English courts.
• In tort cases, the harmful act or resulting loss happened in England or Wales.

Question 22

What rules govern pre-action conduct?

Answer 22

1. Pre-action protocols relating to diff claims (debt, personal injury, professional negligence).
   If no pre-action protocols, then:
2. Practice Direction on Pre-Action Conduct and Protocols (PDPAC) - general guidance in such cases.

Question 23

What is the aim of the protocols + PDPAC?

Answer 23

Initiate + increase pre-action contact between the parties.

Question 24

What happens if a party does not comply with protocols/PDPAC?

Answer 24

If a dispute proceeds to litigation, the court will expect the parties to have complied with the Practice Direction. A party may be sanctioned for failing to do so.

Non-compliance = includes failure to respond to an invitation to consider ADR.

Question 25

What sanctions might be placed on a non-complying party? [re: PDPAC/protocols]

Answer 25

- Additional costs (on an indemnity basis). - if non-complying party is a claimant: reduction in damages awarded.

Question 26

What happens if a party knowingly makes a false statement in a pre-action protocol letter or other document?

Answer 26

They may be subject to proceedings for contempt of court.

Question 27

What are the rules surrounding using Welsh in proceedings?

Answer 27

Provided the court is informed, hearings in Wales may be conducted entirely in Welsh if all the parties and witnesses consent, and documents placed before the court may also be in Welsh.

Question 28

Who does the pre-action protocol for DEBT CLAIMS apply to?

Answer 28

- any business including sole traders and public bodies (the creditor) that brings a claim against a debtor who is either an individual or a sole trader (the debtor). - DOES NOT apply to business to business debts (unless the debtor is a sole trader).

Question 29

How long are debtors given to respond to pre-action debt claims?

Answer 29

30 days – and court proceedings cannot be issued before this deadline.

Question 30

What is the pre-action protocol procedure for professional negligence?

Answer 30

1. C sends prelim notice [info about cl, + outline their grievance] 2. C sends letter of claim 3. The D must acknowledge this in writing within 21 days of receipt. 4. Then, D has 3 months to investigate and to respond. The Letter of Response sets out whether the professional admits the allegations and if not why not, with accompanying documents. 5. Alternatively, or alongside the Letter of Response, a Letter of Settlement may be sent if the professional intends to make proposals for settlement of all or part of the claim. 6. D acknowledges claim 7. D investigates claim within 3 months to do this. 8. D sends letter of response and/or settlement 9. Either C totally denied and no settlement offered (-> stocktake) 10. OR Claim admitted in whole or in part and settlement offered the professional and the claimant should instigate negotiations with the aim of resolving the claim within 6 months of the date of the Letter of Acknowledgment.