Topic 3 - Pre-action conduct and parties to proceedings

Question 1

What happens if proceedings are not commenced within the relevant limitation period?

Answer 1

The claimant will be barred from recovering damages, and the defendant will have a full defence.

Question 2

What is the primary legislation governing limitation periods?

Answer 2

Limitation Act 1980.

Question 3

What is the time limit for personal injury claims according to section 11?

Answer 3

3 years from the latest of the date when the cause of action accrued or the date of knowledge of the person injured.

Question 4

What does ‘date of knowledge’ refer to in limitation law?

Answer 4

Knowing that the injury was significant, attributable to the alleged wrongdoing, and the identity of the defendant.

Question 5

Under the Fatal Accidents Act 1976, when can a claim be brought?

Answer 5

Within 3 years from the later of the date of death or the date of knowledge of the dependent.

Question 6

What is the significance of section 14 in relation to personal injury claims?

Answer 6

It defines the date of knowledge for the claimant.

Question 7

What is the limitation period for claims under the Fatal Accidents Act if the injured person can no longer bring a claim?

Answer 7

The claim cannot be brought if the person injured could no longer bring a claim.

Question 8

How does the court determine whether to extend time for personal injury claims?

Answer 8

By balancing the prejudice to the claimant against the prejudice to the defendant.

Question 9

What is the limitation period for contribution claims according to section 10?

Answer 9

2 years from the date on which the right to recover the contribution arose.

Question 10

What limitation rules apply in negligence actions where the claimant is unaware of the cause of action?

Answer 10

The limitation period is six years from when the cause of action accrued or three years from when they had the requisite knowledge.

Question 11

What is the long-stop limitation date for negligence claims?

Answer 11

15 years from the date of the latest negligent act or omission.

Question 12

What is the general limitation period for actions in tort?

Answer 12

6 years after the date on which the cause of action accrued.

Question 13

What is the limitation period for enforcing a judgment according to section 24?

Answer 13

6 years from when the judgment became enforceable.

Question 14

Under what conditions does the limitation period start for a claimant under a disability?

Answer 14

When the disability ends.

Question 15

What are the time limits for claims if the claimant is under a disability?

Answer 15

• 2 years for contribution claims
• 3 years for personal injury or fatal accident claims
• 6 years for most other cases

Question 16

When does limitation not start to run according to section 32?

Answer 16

Until the claimant discovers the fraud, concealment, or mistake.

Question 17

What is the purpose of the Pre-Action Protocol?

Answer 17

To encourage parties to resolve disputes without involving the courts.

Question 18

What are the consequences of non-compliance with pre-action protocols?

Answer 18

Adverse consequences related to costs and interest, or the court may stay the proceedings.

Question 19

Is non-compliance with pre-action requirements ever justified?

Answer 19

Yes, in limited circumstances such as when a limitation period is about to expire.

Question 20

What is the expectation regarding a defendant’s response to liability during pre-action conduct?

Answer 20

The defendant should admit liability early if applicable or dispute it clearly with reasons.

Question 21

What is a key requirement of parties before issuing proceedings?

Answer 21

To take stock of their positions and consider negotiation or ADR.

Question 22

What is a search order in legal terms?

Answer 22

A court order allowing an unannounced revisit to the opponent’s premises to search for documents.

Question 23

When is a search order obtained?

Answer 23

When there is fear that the opponent will destroy documents instead of providing them to the claimant or court.

Question 24

What is the value limit for personal injury claims likely to be allocated to the fast-track?

Answer 24

Up to £25,000.

Question 25

What does the Practice Direction apply to?

Answer 25

All cases, but a specific protocol overrides conflicting provisions of the Practice Direction.

Question 26

What should the claimant provide in the Letter of Notification?

Answer 26

Brief details to enable the defendant to notify its insurer.

Question 27

What is the timeframe for the defendant to acknowledge the Letter of Claim?

Answer 27

Within 21 days.

Question 28

What must the defendant do within 3 months of acknowledging the claim?

Answer 28

Investigate and send a full Letter of Response.

Question 29

What actions should parties take after the defendant denies liability or quantum?

Answer 29

*Disclose key documents* *Engage in negotiations* *Make proposals for settlement*

Question 30

What is required in terms of response time according to the Practice Direction?

Answer 30

A reasonable period, which could be between 14 days and 3 months.

Question 31

How should individuals be referred to in a claim?

Answer 31

Using their full unabbreviated name and title.

Question 32

How are claims against partnerships brought?

Answer 32

In the name under which the partnership carried on business at the time the cause of action accrued.

Question 33

What is the legal status of an LLP?

Answer 33

An LLP is a separate legal entity distinct from its members.

Question 34

What must be included in a claim form for a company registered in England and Wales?

Answer 34

The full registered name, including the suffix.

Question 35

What is the role of trustees in claims involving trusts?

Answer 35

Claims can be brought by or against trustees, executors, or administrators.

Question 36

What happens if a person with an interest in a claim dies?

Answer 36

The court may order the claim to proceed in the absence of a representative or appoint someone to represent the estate.

Question 37

What defines a child in the context of legal claims?

Answer 37

Any person under the age of 18 years.

Question 38

What is a protected party?

Answer 38

A person who lacks capacity to conduct proceedings under the Mental Capacity Act 2005.

Question 39

What must a litigation friend be able to do?

Answer 39

Fairly and competently conduct proceedings on behalf of the child or protected party.

Question 40

What are the special provisions for serving documents on children and protected parties?

Answer 40

Documents must be served on the litigation friend.

Question 41

What is the consequence of not having a litigation friend?

Answer 41

Any step taken before a child or protected party has a litigation friend has no effect.

Question 42

What is required for a settlement involving a child or protected party to be valid?

Answer 42

Approval of the court is necessary.

Question 43

What documents must be filed for court approval of a settlement for a child or protected party?

Answer 43

*Details of the claim* *Terms of the settlement with attached draft consent order* *Litigation friend’s approval of the proposed settlement*

Question 44

What happens if a settlement is reached unexpectedly at trial?

Answer 44

The court may not approve the settlement unless all necessary medical reports and evidence are available.

Question 45

What is required when seeking approval of a settlement after proceedings have been issued?

Answer 45

An application must be made to the court for its approval.

Question 46

What happens to monies recovered by or on behalf of a child or protected party?

Answer 46

Control of those monies is subject to court approval and oversight.

Question 47

What must be available to the court in personal injury cases involving children or protected parties?

Answer 47

All medical reports, schedules of loss, and potentially lay evidence as to the child’s or protected party’s medical condition ## Footnote This is necessary for the court to make informed decisions regarding settlements and damages.

Question 48

Under what circumstances can damages be settled before or after proceedings have been issued according to CPR 21.10(3)(f)?

Answer 48

When the settlement includes provision for future pecuniary loss ## Footnote This allows for compensation for losses that may occur in the future, ensuring that the injured party is adequately compensated.

Question 49

How must monies recovered by or on behalf of a child or protected party be dealt with?

Answer 49

In accordance with the court’s directions ## Footnote This ensures that the funds are managed properly and in the best interest of the child or protected party.

Question 50

What is the role of the Court of Protection under the Mental Capacity Act 2005?

Answer 50

To protect the property of protected parties and administer funds ## Footnote The court has extensive powers to manage and protect the financial interests of individuals who lack capacity.

Question 51

What happens when a protected party ceases to lack capacity under the Mental Capacity Act 2005?

Answer 51

An application for payment out of funds administered by the Court of Protection must be made ## Footnote This process ensures that the funds are released appropriately when the individual regains capacity.

Question 52

What may the court direct regarding the investment of money for the benefit of a child?

Answer 52

The court may direct the type of investment and order payments for immediate benefit ## Footnote This ensures that the child's financial interests are prioritized and managed effectively.

Question 53

What must a claim form include when bringing a claim against a partnership?

Answer 53

The full name of the partnership under which it carried on business ## Footnote This is essential for clarity and proper identification of the parties involved.

Question 54

In what situation might it be inappropriate to bring a claim against a partnership under its business name?

Answer 54

When there have been multiple name changes or mergers ## Footnote This can lead to confusion, making it clearer to identify the partners individually.

Question 55

What is the full name format for a partnership when sued?

Answer 55

The partnership name or the full unabbreviated names of each partner ## Footnote This ensures proper legal identification and accountability.

Question 56

How are claims brought against sole traders typically described?

Answer 56

Both the individual’s name and the trading name ## Footnote This helps in identifying the responsible party for the claim.

Question 57

What distinguishes an LLP from other business structures?

Answer 57

An LLP is a separate legal entity distinct from its members ## Footnote Members have limited liability, meaning they are not personally liable for the LLP's debts.

Question 58

What is required when bringing a claim against a company registered in England and Wales?

Answer 58

The full registered name of the company, including suffixes like plc or limited ## Footnote This ensures the claim is directed to the correct legal entity.

Question 59

Under what conditions can a claim proceed if a person with an interest has died?

Answer 59

If there is no personal representative, the court may allow the claim to proceed in their absence or appoint someone to represent the estate ## Footnote This facilitates the continuation of legal matters despite the death of a party.

Question 60

What defines a child according to CPR 21.1(2)?

Answer 60

Any person under the age of 18 years ## Footnote This legal definition is critical for understanding the rights and protections available to minors.

Question 61

What is a protected party as defined by the Mental Capacity Act 2005?

Answer 61

Any person who lacks capacity to conduct the proceedings ## Footnote This includes individuals with impairments that prevent them from making decisions.

Question 62

What is the presumption regarding capacity for adults?

Answer 62

A person of adult age is presumed to have 'capacity' until proven otherwise ## Footnote This places the burden of proof on those asserting incapacity.

Question 63

What must legal advisors assess regarding a party's capacity?

Answer 63

The party's ability to understand and evaluate advice, and to make decisions ## Footnote This is crucial for ensuring fair legal representation.

Question 64

Who can act as a litigation friend?

Answer 64

A person who can fairly and competently conduct proceedings on behalf of the child or protected party ## Footnote This individual must have no adverse interests and be willing to cover costs.

Question 65

How is a litigation friend typically appointed?

Answer 65

By filing and serving a certificate of suitability or by a court order ## Footnote This ensures that the appointed individual meets necessary criteria.

Question 66

What special provisions exist for serving documents on children and protected parties?

Answer 66

Documents must be served on the litigation friend ## Footnote This ensures that the interests of the child or protected party are represented adequately.