2 - Pre-Action and Starting a Claim

Question 1

What is the Pre-Action Protocol and Practice Direction in litigation?

Answer 1

Litigation should be a last resort, and parties are encouraged to explore alternative dispute resolution (ADR) or resolve disputes informally.

• Pre-action protocols apply to specific types of disputes and set out procedures that should be followed before issuing proceedings unless exceptional circumstances exist.
• The Practice Direction – Pre-Action Conduct and Protocols applies to all cases (whether or not a specific pre-action protocol exists) and aims to establish standards of reasonable behaviour between parties.

In case of a conflict between the Practice Direction and a specific pre-action protocol, the provisions of the specific protocol take priority.

Question 2

How are parties expected to act under the Pre-Action Protocols and Practice Directions?

Answer 2

• Act reasonably in exchanging documents and information;
• Avoid unnecessary court proceedings where possible;
• Follow a procedure appropriate to the dispute’s circumstances.

Question 3

What are the Aims of the Pre-Action Protocols?

Answer 3

• Encourage a ‘cards on the table’ approach to resolving disputes without court involvement.
• Allow parties to gather information early for settlement or efficient litigation.
• Encourage defendants to admit or dispute liability early and clearly.
• Require consideration of ADR to avoid court proceedings.
• Parties should review their positions before starting litigation rather than acting ‘mechanically.’

Question 4

What are the consequences of non-compliance with the Pre-Action Protocols?

Answer 4

• The court may impose adverse consequences relating to costs and interest.
• Proceedings can be stayed until compliance is rectified.
• Sanctions depend on the impact of non-compliance on the other party.
• Minor infringements are less likely to result in sanctions.
• The court may ask for an explanation of non-compliance.

Example: A defendant’s lack of response to a pre-action claim letter may lead the court to order them to pay part of the claimant’s costs despite normal rules.

Question 5

Is non-compliance with Pre-Action Protocols ever justified?

Answer 5

Yes, in circumstances such as:

• When a limitation period is about to expire and proceedings must be issued immediately, no time to action protocols.
• When urgent proceedings or an element of surprise are required, such as applying for a search order to prevent destruction of documents.

In such cases, parties must comply as much as possible and may need to apply for a stay of proceedings to complete the pre-action process later.

Question 6

What are the circumstances in which each Pre-Action Protocol and Practice Direction apply?

Answer 6

Pre-Action Protocol for Personal Injury Claims applies to:
- Personal injury claims that don’t fall under another specific protocol.
- Claims likely to be allocated to the fast-track (value up to £25,000), although it can also guide higher-value cases.

The Practice Direction applies to:
- All cases, unless a specific pre-action protocol applies, in which case the protocol takes precedence over the Practice Direction.

Question 7

What is the Pre-Action Protocol for PI claims?

Answer 7

• Claimant sends Letter of Notification with brief details to potential defendant.
• Parties consider **rehabilitation needs ** i.e., any ongoing medical and care needs, and how to address them.
• Claimant sends a Letter of Claim outlining full details of the claim.
• Defendant acknowledges the claim within 21 days.
• Defendant sends a Letter of Response within 3 months of acknowledging the claim.
• If liability/quantum is denied, parties disclose key documents, negotiate, and share a schedule of losses.
• Jointly select a quantum expert or claimant shares report, and defendant submits written questions.

Question 8

What are the key steps in the Practice Direction – Pre-Action Conduct and Protocols?

Answer 8

Claimant sends a Letter of Claim with details of the dispute.

The Defendant should acknowledge the letter of claim in writing within 21 days of receipt. Where claimant is unrepresented, the Letter of Acknowledgment should encole a copy of this protocol unless provided previously.

Defendant responds within a reasonable period once they have completed investigations into the matter, either:
- Accepting the claim,
- Sending a Letter of Settlement, if the defendant intends to make proposals to settle all or part of the claim,
- Rejecting it (wholly or partially), with reasons (letter of response).
- A reasonable time could be 14 days in a straightforward case, and no more than 3 months in a complex case.

If the Claimant receives a Letter of Response they are open to start court proceedings.

If the Claimant receives a Letter of Settlement, the parties should commence negotiations with the aim of resolving the claim within 6 months of the date if the Letter of Acknowledgment.
If the claim cannot be resolved in this period, the parties should agree within 14 days of the end of the period whether it should be extended and by how long, identify the issues still in dispute, and if extension is not agreed they may begin court proceedings.

Parties disclose key documents, negotiate, and make settlement proposals.

Court proceedings are the last resort, parties should consider forms of ADR first.

Question 9

What are the two types of court used in civil claims and what type of jurisdiction do they have?

Answer 9

• The High Court
• The County Court
  Have concurrent jurisdiction over most claims, means that the claimant often has a choice when deciding in which of these courts to issue their claim.

Question 10

What are the jurisdiction thresholds of the High and Country Courts for PI and Non-PI claims?

Answer 10

Non-personal injury (PI) claims:
- Claims up to £100,000 must be in the County Court.
- Claims over £100,000 can be in either High Court or County Court.

Personal injury (PI) claims:
- Claims less than £50,000 must be in the County Court.
- Claims £50,000 or more can be in either High Court or County Court.

If the claim form is to be issued in the High Court it must state that the claimant expects to recover more than £100,000 (CPR 16.3(5)).

Discount interest when calculating this.

Question 11

What guidelines should be followed if there is a choice between courts to commence proceedings?

Answer 11

A claim should be started in the High Court if by reason of:

(1) The financial value of the claim and the amount in dispute, and/or

(2) The complexity of the facts, legal issues, remedies or procedures involved, and/or

(3) The importance of the outcome of the claim to the public in general,

The claimant believes that the claim ought to be dealt with by a High Court judge (7A PD 2.4).

Question 12

What happens if the court disagrees with the claimant’s choice of court once the claim has been issued?

Answer 12

• The court may transfer the case and order the claimant to pay the costs of the transfer.
• If the claim wrongly begins in the High Court when it should have been issued in the County Court, the court may deduct up to 25% of the awarded costs (under section 51 of the Senior Courts Act), but this is at the courts discretion.

Question 13

How to issue a claim at the County and High Courts?

Answer 13

To issue a claim at court, the claimant’s solicitors must take or send the following to court:

Copies of the claim form (Form N1) to be issued and sealed:
- One copy of the completed claim form to be kept on the court file;
- One copy for every defendant; and
- One copy for the claimant to keep on its own file.
- Particulars of claim
Court issue fee (varies depending on value of claim).

Question 14

How are High Court claims issued and what is the significance of the date of issue (re limitation)?

Answer 14

Stops limitation period and starts the service deadline.

Receipt: Documents sent to the High Court are stamped with the date of receipt, stopping the limitation clock.

In-Person Submission: Documents can be taken in person and issued the same day.

Court Process: The court stamps the claim form with the date of issue, assigns a claim number, and seals all copies.

Case Management: A case management file is created, and the court’s sealed copy of the claim form is placed on this file.

Question 15

How are County Court claims issued and what is the significance of the date of issue (re limitation)?

Answer 15

Stops the limitation period and starts the service deadline.

Money Claims: Issued centrally by post to the Civil National Business Centre in Northampton, using Form N1 and the appropriate fee.

Non-Money Claims: Issued at any County Court Hearing Centre by sending in or attending with Form N1 and the fee.

Preferred Hearing Centre: Claimant specifies on the form; the case may be transferred to this or another centre as needed.

Question 16

What service is available for users who are going to issue many claims?

Answer 16

Purpose: Provides a quick and cost-effective resolution for simple money claims.

Eligibility: Used for claims up to £100,000 and against no more than two defendants.

Process: The claimant registers online, completes the claim form, and serves it electronically. The defendant can respond online.

Defended Claims: If defended, the claim is transferred to the appropriate local County Court hearing centre.

Question 17

How can bulk County Court claims be issued?

Answer 17

Users (e.g., utility companies) who issue many claims can register with the County Court Business Centre in Northampton.
The Centre provides a specialised service for handling large volumes of claims efficiently.

Question 18

Who will serve the service of the claim form?

Answer 18

The service can be effected by either the court or the claimant’s solicitors.

The court typically serves the claim form by first-class post, while the claimant’s solicitor must notify the court if they intend to serve it themselves and file a certificate of service within 21 days, unless the defendant files an acknowledgment of service.

Question 19

What methods should be used by the courts or the claimant’s solicitors to serve the claim form?

Answer 19

Court: Typically uses first-class post.

Claimant’s Solicitors: Can use various methods including
- Personal service - Physically leaving the claim form with a defendant who is an individual, or an appropriate person in the case of a company or similar legal entity
- Leaving the document at a permitted address, first-class post - This means depositing the claim form at a permitted address.
- Document Exchange (DX) or First Class post .
- Fax (if permitted),
- Email (if accepted),
- Or any method authorised by the court.

Question 20

Where should the claim form be served if using place of service or permitted address?

Answer 20

Personal service: The defendant can be served wherever they are found within the jurisdiction.

Permitted Address:
For individuals: Usual or last known residence.
For businesses: Principal or last known place of business.
For companies/LLPs registered in England and Wales: Principal office or any place of business within the jurisdiction with a real connection to the claim.

If the defendant has given a solicitor’s address for service, it must be served there (CPR 6.7).

Question 21

When must the claim form be served on the defendant?

Answer 21

The “relevant step” to effect service (posting, delivery, or transmission) must be completed before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

If outside Jurisdiction, you are given 6 months.

If the claim form is not served within this time, then the claim will fail automatically.

If the claimant still wishes to pursue the claim, it will need to issue a new claim and pay the court fee again (and for limitation purposes, the date the new claim is issued will be the relevant date).

Question 22

Can you apply for an extension of time to serve the claim form?

Answer 22

Yes, under CPR 7.6, the claimant can apply for an extension:

• Before the 4-month period ends: Must show good reason (e.g., awaiting key evidence is not likely to succeed).
• After the 4-month period: The court will only grant an extension if the court caused the failure or if the claimant took all reasonable steps to serve but was unsuccessful.

Question 23

What are the particulars of claim?

Answer 23

The particulars of claim set out the full details of the claim.

Question 24

When must the particulars of claim be served?

Answer 24

If not served with the claim form, they must be served within 14 days of the claim form’s service and within the 4-month period of the claim form’s validity (CPR 7.4(2)).

If the particulars of claim are contained in or served with the claim form, the claimant must also serve the response pack along with the claim form and particulars of claim (CPR 7.8(1)). The response pack (Form N9) contains:

a. Form for admission;

b. Form for defending; and

c. Form for acknowledging service.

Where the particulars of claim are to follow, the response pack will be served later, with the particulars of claim.

Question 25

What methods can be used to serve the particulars of claim?

Answer 25

Same methods as for the claim form:
- Personal service.
- First-class post/DX.
- Fax (if agreed).
- Email (if agreed).
- Any other method authorised by the court.

Question 26

What happens after service of the claim form and particulars?

Answer 26

After service, the defendant must respond by:

• Filing an acknowledgment of service, OR
• Filing a defence, OR
• Admitting the claim
• Within 14 days.

The claimant must file a copy of the particulars of claim with the court within 7 days of service, if not already done.

Failure to respond by the defendant may result in judgment in default.

Question 27

What is the concept of ‘deemed date of service’?

Answer 27

The deemed date of service is the date on which a document is considered to have been served by the courts, regardless of when it was actually received by the recipient.

Question 28

Why is it important to know the deemed date of service of the claim form?

Answer 28

• For the claimant: It determines the deadline for serving the particulars of claim if not included with the claim form.
• For the defendant: It sets the deadline for responding to the claim form if the particulars are included with it.

Question 29

Why is it important to know the deemed date of service of the particulars attached to the claim form?

Answer 29

• If the particulars of claim are attached to the claim form and sent together, knowing the deemed date of service is essential for determining if the response deadlines and time limits align with those for the claim form.
• For separate service of documents, it helps in calculating the deadlines for responding to the particulars of claim, which are served within 14 days of the claim form.

Question 30

What are the rules for deemed date of service for particulars not attached to the claims form?

Answer 30

If served separately from the claim form:
Must be served within 14 days after service of the claim form (CPR 7.4(1)(b)).

Deemed date of service varies by method:

Instant methods (personal service, fax, email, delivering/ leaving at a permitted address):
- Before 4.30pm on a business day: deemed served the same day.
- After 4.30pm or on a non-business day: deemed served the next business day.

Non-instant methods (post/DX):
- Deemed served on the second business day after posting/giving to DX provider.
- If not a business day, deemed served on the next business day.

Question 31

What are the rules for deemed date of service for the claims form?

Answer 31

The claims form is considered served on the second business day after completion of the relevant step (serving the form).

Question 32

What are statements of case and why do they matter?

Answer 32

Statements of case are documents that outline the factual basis of a claim and the relief sought by the claimant, and the defendant’s position regarding the claim (claim form, particulars, defence).

They must be clear, concise, and correct and they must comply with all necessary content requirements as prescribed by the CPR. They must also be in the correct format.

Question 33

What must the heading of a statement of case include?

Answer 33

• The court and/or division where the claim is proceeding (e.g., “IN THE HIGH COURT OF JUSTICE, KING’S BENCH DIVISION”).
• The claim number (e.g., “Claim number: 20XX-HC-5612”).
• The full names of the parties and their status in the proceedings (e.g., “Charles Corby, Claimant, and Daniel Darwin, Defendant”).

Question 34

What formalities the main body of a statement of case comply with?

Answer 34

• Numbered paragraphs.
  Pages numbered consecutively.
• All numbers and dates in figures (e.g., “£23,000 on 29 March 1965”).
  Reference in the margin to every document mentioned already filed at court.
• The name of the person who drafted the document (individual barrister or firm of solicitors).
• A statement of truth.

Question 35

What happens if a statement of case does not comply with rules?

Answer 35

• Non-compliance may require formal amendment, often needing court permission.
• This can lead to wasted court and party time, increased costs, and potential tactical disadvantages.
  There may also be costs consequences for parties serving deficient statements.

Question 36

What is the statement of truth and what is its purpose?

Answer 36

• A statement of truth is a formal declaration that the person signing believes the document is true.
• It is required for a statement of case to be used as evidence.
• If the statement contains false information and the signatory does not honestly believe in its truth, they may face contempt of court proceedings, fines, or imprisonment.

Question 37

What is the purpose of a claim form?

Answer 37

• The claim form is used to commence legal proceedings and outlines key elements of the claim, including the identity of the parties.
• It serves as the first statement of case and is prepared by the claimant.

Question 38

What form is the claim form found on?

Answer 38

• The claim form is usually on Form N1 (7A PD 3.1), with the form dictating the structure and guiding the required content.
• Specialist proceedings may require different forms.

Question 39

What should the contents of the claim form include?

Answer 39

Parties’ names and addresses:
- Includes the correct format for individuals, companies, partnerships, trustees, deceased persons, etc.
Must state the capacity of a party acting in a representative role.

Claim details & Remedy Sought:
- A concise statement of the claim’s nature (not to be confused with particulars of claim).
The remedy sought, though the court can grant any remedy the claimant is entitled to.

Value of the claim (if for money):
- Must state the value, which may be specified, estimated, or unknown. This is used to provisionally allocate the claim to a track.
- For personal injury claims, whether the recovery is expected to exceed £1,500 for pain and suffering.

Jurisdictional endorsement (if in the High Court for money claims):
- Expected recovery must exceed £100,000,
- If the claim is a claim for personal injuries state that the claimant expects to recover £50,000 or more.
- If the claim is a claim for personal injuries state that the claimant expects to recover £50,000 or more

Exclusions in determining value:
- Interest, costs, counterclaims, set-offs, contributory negligence, or state benefits.

Particulars of claim:
- Either included within the claim form or served separately within 14 days. If included, state that it is attached.
- If separate, the claim form must note that the particulars will follow.

Question 40

How must the names of Trusts and Deceased Persons be formatted on a claim form?

Answer 40

Trust - “Trustees of the [eg a Pension scheme] OR
Markus Severn in his capacity as trustee of [name of trust]”

Deceased person - [where probate / letters of administration have been granted] “Jane Wilson (as administratrix / executrix of John Wilson)”. [Where probate or letters of administration have not been granted “The personal representatives of John Wilson deceased”.

Question 41

When are the Particulars of Claim attached to the claim form?

Answer 41

In anything other than very simple cases, the particulars of claim will be a separate stand-alone document.

However, there is space to include the particulars of claim on the claim form itself where they are relatively concise eg in a simple debt claim.

Question 42

What is the purpose of Particulars of Claim?

Answer 42

• To set out the claimant’s case in full detail, including all material facts and allegations that support the claim.
• It is the claimant’s main statement of case, forming the basis for the court’s review and other parties’ responses.
• Used to identify the basis of the claimant’s claim.

Question 43

What is the general content of particulars of claim?

Answer 43

• A concise statement of facts on which the claimant relies (CPR 16.4).
• The particulars of claim must therefore set out all the material facts and allegations which, if proved by evidence, would entitle the claimant to the remedy it seeks as a matter of law.
• Should set out any facts that ‘tell the story’ and assist the reader in understanding the case, ie background facts.
• Should cover duty, breach, causation, and loss (if relevant to the claim).

Question 44

What should Particulars of Claim not include?

Answer 44

• Should not include law or evidence, or arguments; these are dealt with later in proceedings.
• Evidence is provided at a later stage (primarily through exchange of documents and witness statements).
• Law is argued by the advocate in their submissions.

Question 45

What is the content of particulars of claim for specific claims?

Answer 45

• Any claim for aggravated, exemplary, or provisional damages, and giving the grounds for claiming them.
• In personal injury claims, include the claimant’s date of birth, details of injuries, past/future losses, and expert practitioner medical reports relied upon.
• A claim regarding the possession, occupation, use or enjoyment of land, or for an injunction or declaration in relation to land, must identify the land and make clear whether it includes residential premises
• For contract-based claims, attach the agreement or explain terms if oral or by conduct.
• Any human rights arguments relied upon / relief sought (16 PD 14) must be included in the particulars of claim.

Question 46

What are a claimants rights to interest as set out in the particulars of claim?

Answer 46

• Claimants can seek interest to compensate for the delay in receiving money due.
• The legal basis may be contractual (set out under the parties contract) or under statutory rights (Senior Courts Act 1981 for High Court, County Courts Act 1984 for County Court).

Question 47

How to claim for interest on a specified claim?

Answer 47

There are two ways of setting out the paragraph(s) claiming interest:
- Calculating exactly the amount of interest claimed.
- Claiming (pleading) the interest generally.

State the applicable percentage rate, dates from/to which interest is being claimed, the total interest claimed up to the issue of the claim form, and the daily rate thereafter.

Exact Calculation:
This method is only used in practice if the claimant is making a specified claim, i.e., a debt or a specified/liquidated damages claim. In pleading interest in a specified claim, you would need to set out:
- The applicable percentage rate,
- The dates from/to which interest is being claimed,
- The total amount claimed up to the issue of the claim form, and
- The daily rate of interest thereafter.

Example: specified claim
The Claimant also claims interest pursuant to clause 2.3 of the contract from the due date of the invoice to today’s date at the rate of 8% per annum in the total sum of £701.37.
Particulars of Interest
8% of £100,000 for the period 1 January 2020 to 1 February 2020 inclusive (32 days at the daily rate of £21.92) = £701.37.
Further, the Claimant claims interest as above from today’s date until judgment or earlier payment at a daily rate of £21.92.

Question 48

How to claim for interest on an unspecified claim? Which types of damage fall into this category?

Answer 48

Plead interest generally under statutory rights, allowing the court to decide the interest rate and period.
Certain types (or ‘heads’) of damage will naturally fall into this category, eg:
- Loss of goodwill or damage to reputation (which can usually only be estimated),
- Loss of future earnings or profits, and
- Any damages where remoteness, foreseeability and/or mitigation is an issue.

Example: unspecified claim
The Claimant claims interest on the damages referred to in paragraph 12 above pursuant to section 35A Senior Courts Act 1981 at such rate and for such period as the court thinks fit.

Question 49

What happens if the claim (re particulars) are partly specified and partly unspecified?

Answer 49

Treat each claim separately (specified and unspecified), or treat the entire claim as unspecified.

Question 50

What are statutory interest claims?

Answer 50

• Claims under Senior Courts Act 1981 or County Courts Act 1984.
• The court has discretion to award interest for the period from when the cause of action accrued until judgment.
• In personal injury claims where damages over £200 are awarded, some interest must be awarded unless there are special reasons for not doing so, but the amount is still in the court’s discretion.
• In debt claims, if the defendant pays the whole debt during the proceedings, some interest must be awarded, but the amount is still in the court’s discretion.

Question 51

What structure should particulars of claim follow?

Answer 51

Logical order:
1. Introduction of parties
2. Set out the duty and background facts
3. Specify the breach
4. Causation linked to the breach
5. Set out loss and interest claims
6. Prayer

Question 52

What is a prayer (at the end of particulars)?

Answer 52

A summary of relief sought by the claimant, outlining the remedies or damages requested.