2): Pre-Action consideration and Steps

Question 1

What are the preliminary considerations regarding the parties to a claim?

Answer 1

claimant makes the claim

defendant has claim made against them.

defendant must be traceable, identifiable and solvent.

Question 2

What are the preliminary considerations regarding the causes of action?

Answer 2

solicitor must establish legal basis of claim (contract or tort)

assess likelihood of success by reviewing all available evidence

identify issues in dispute and how these are to be proved

give initial advice as to costs, liability and quantum

Question 3

What are some common causes of action?

Answer 3

breach of contract

misrepresentation (contract)

negligence and negligence misstatement (Tort)

Nuisance (Tort)

Question 4

What are the limitation periods for claims in contract and tort?

Answer 4

1. contract:

start date: date of breach

time period: 6 years

2. Tort (other than personal injury and latent damage):

start date: date damage occurs

time period: 6 years

3. Tort (personal injury):

start date: later of: date cause of action occurs OR date of knowledge of person injured

Time period: 3 years

4. Tort (latent damage):

Start date: later of: date damage occurs OR date claimant first had knowledge required to bring claim

Time Period: 6 years from date of damage OR 3 years from date of knowledge AND maximum 15 years from date of negligence

Question 5

Will the court allow claims started outside the limitation period?

Answer 5

No they are statute barred.

Question 6

What is the requirement on the parties for pre-action protocols?

Answer 6

prior to issuing proceedings, parties must comply with these

Question 7

What is the Practice Direction on Pre-Action Conduct and Protocols (PDPACP)?

Answer 7

applies where no relevant pre-action protocol exists

Question 8

What do the Pre-Action protocols and PDPACP do?

Answer 8

encourage quick resolution of cases without litigation by early and fair exchange of info

steps:

1. parties should consider ADR with a view to settlement
2. claimant should write to defendant with concise details of claim
3. defendant should respond within reasonable time if claim if accepted and/or if there is counter claim
4. parties should disclose key documents relevant to issues in dispute
5. parties should take steps to narrow issues in dispute

Question 9

What are the consequences for failing to follow Pre-Action Protocols and PDPACP?

Answer 9

includes a court order to:

pay other party’s costs (in full/part)

pay other party’s costs on indemnity basis

deprive claimant who has been awarded a sum of money, interest on that sum

require defendant to pat interest (10% above base rate on any damages awarded)

Question 10

What are the mechanisms for determining which country’s law applies to a contractual or tortious claim issued in the courts of England and Wales?

Answer 10

choice of law/governing law clause:

English courts will generally respect a choice of English law (or that of another state) in same way as before Brexit

Question 11

What are the limitations on the parties’ autonomy to select choice of law/governing law?

Answer 11

1. mandatory rules of law of the forum where dispute will be heard may override governing law of the parties.
2. statutory protections for the benefit of presumptively weak parties will override the parties’ choice of law
3. choice of law may be refused if its application. is incompatible with public policy of jurisdiction in which dispute is being heard
4. courts may not uphold the parties’ choice of law if it is not considered as bona fide
5. courts may refuse application of foreign governing law if the contract is purely domestic

Question 12

When does the European regime apply?

Answer 12

does not apply to proceedings instituted from 1 January 2021

instead these are governed by Common Law Rules or Hague Convention where applicable

Question 13

What is the jurisdiction for Common Law Rules?

Answer 13

apply from 1 January 2021:

if a defendant is within the jurisdiction of the English court and is validly served, English court has jurisdiction

Question 14

When may the English courts exercise jurisdiction?

Answer 14

Key common law gateways:

1. defendant domiciled in England
2. property in England
3. injunction to do/not to do an act in England
4. contract made in England or subject to English jurisdiction
5. tort claims where damage in England or resulting from act in England

Question 15

When may proceedings be stayed or jurisdiction declined?

Answer 15

there is a more appropriate forum

parties agree to refer to foreign courts or arbitration

dispute relates to foreign land/ intellectual property rights

proceedings amount to abuse of court’s process

Question 16

When may a defendant lose/waive their right to contest jurisdiction?

Answer 16

by taking a step in the proceedings that is inconsistent with that right

AND

which may be seen as constituting a submission to the court’s jurisdiction