1. Pre Action Steps Flashcards
When does the limitation period accrue in Contract Law?
The Limitation period runs a day after the cause of action accrues. In contract law, this is one the contractual duty is broken.
When does the limitation period accrue in Tort Law?
The Limitation period runs a day after the cause of action accrues. In Tort law, this is when the damage occurs.
When is the basic limitation period for Contract and Tort Law?
6 Years, unless it is personal injury which is 3 years
When do Proceedings officially start?
Proceedings officially start once the Court has formally Processed the claim form.
What happens if the Court processes the claim form after the limitation period, but it was issued during the limitation period?
If the claim was issued before the period expired, the claim is treated as being commenced within the limitation period even if the claim form was not processed by the Court in time.
Can Court Proceedings commence even if the limitation period appears to have expired?
Yes, but the defendant will have a cast iron defense regardless of how strong the claim is, and the claimant has the burden to prove the limitation has not expired
Why is ADR important?
Litigation is a last resort, as parties that fail to consider or participate properly in litigation may face financial penalties, even if they were successful in litigation.
What are the Pre-Action Protocols?
If litigation is used, Pre Action Protocols must be followed before starting proceedings. The idea is that parties should not be taken by surprise when a claim is started. Parties should already know
- The Facts of the Case
- Why it was disputed
- and considered whether ADR could have settled the matter
What are the Consequences of not following the Pre Action Protocols?
- The Party at Fault may have to pay the costs of the other parties, which may be on an indemnity basis
- If the claimant is at fault, they may lose any interest or be awarded interest at a lower rate.
- If the defendant is at fault, an order for higher interest rate to the claimant (not exceeding 10% above base rate) may be applied
What are the Objectives of the Pre Action Protocols?
(a) understand each other’s position;
(b) make decisions about how to proceed;
(c) try to settle the issues without proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute.
Does the Limitation Period Contiune to Run during Proceedings?
The bringing of an action stops the running of time for that cause of action only.
Can the limitation period be altered in contract?
Yes, the Contract may shorten or lengthen the standard 6 year period.
How long is the limitation period in personal injury claims?
3 years
In Tort law claims, what happens to the limitation period if the injured is under 18?
It begins to run once they turn 18
Should you start court proceedings before following the pre-action steps if the limitation period is nearly over?
Yes, and then write to the defendant to stay court proceedings while they comply with pre action steps.
