3. PAP & Pre-Action Application Flashcards
Consequences of failing to comply with Pre-Action Protocol
(1) made to pay costs
(2) higher interest rate
(3) if lost the claim - indemnity rather than standard costs.
When is it appropriate to issue proceedings without complying with PAP
(1) limitation period ends soon
(2) where order required to protect assets/evidence
(3) where D may seek to issue proceedings in different jurisdiction.
When is it proportionate to make an application for Pre-Action Disclosure?
WHEN
(1) C is likely claimant
(2) D is likely defendant
(3) Docs requested would be disclosed under standard procedure
(4) Disclosure would assist in disposing of claim without need to issue proceedings
When can you make an Applicatoin for Pre-Action Inspection of Property
(1) Property is or may become subject matter of proceedings
(2) Relevant to the issues that will arise in the proceedings
What are suggested response times under PAP?
14 days - straightforward
3 months - complex
**personal injury - 21 days and up to 3 months
Under PI PAP - when can C issue claim?
After expiry of 21 day response time if no response received.
(if response received, then should wait until substantive response up to 3 months)
In what circumstances can you apply for pre-action disclosure from someone not party to the prospective proceedings?
- IF it will support claim or adversely affect otherside
* *AND** - necessary to dispose of the matter fairly or save costs
Under the PAP for Personal Injury, what is the process for instructing an expert?
Single joint expert:
Parties are encouraged to instruct the same expert.
Process - C will send D a list of possible experts.
D has 14 days to disagree.
If D disagrees, each party can instruct their own expert.
OR
Agreed expert -
C instructs an expert to produce a report. D retains the right to instruct their own expert if they are unhappy with the report.
What are possible consequences for failing to comply with PAP?
- Sanctions
- Stay of proceedings pending completion of PAP
