3. Pre-action Conduct

Question 1

What are pre-action protocols?

Answer 1

they set out the steps the court would normally expect parties to undertake before commencing proceedings

Question 2

Before proceedings are commenced what is the expectation of the court?

Answer 2

that parties will have exchanged sufficient information to:

(1) understand each other’s position
(2) make decisions about how to proceed
(3) try to settle the issues without proceedings
(4) consider a form of ADR to assist with settlement
(5) support the efficient management of proceedings; and
(6) reduce the costs of resolving the dispute

These are the ‘objectives’ of the pre-action protocols

Question 3

Can a party recover disproportionate costs that arise from alleged compliance with a pre-action protocol?

Answer 3

No, any costs for complying with a pre-action protocol must be proportionate

Question 4

What are the steps mandated by the general pre-action protocol if there is no specific pre-action protocol?

Answer 4

The parties should exchange correspondence to comply with the objectives in para 3. The steps will usually include:

(1) the claimant should write to the defendant with concise details of the claim.
(2) the defendant should respond in a reasonable time (14 days in a straight forward claim; no more than 3 months for a complex claim).
(3) the parties should disclose any key documents relevant to the issues in dispute

Question 5

Is the court’s permission needed to rely on expert evidence?

Answer 5

Yes - court may limit the fees recoverable

Question 6

If proceedings are issued what might the court require the parties to prove?

Answer 6

that ADR has been considered.

Question 7

What should the parties do if the dispute has not been resolved after the parties have followed the general pre-action protocol (in cases where there is no specific protocol)?

Answer 7

they should consider the papers and evidence to see if proceedings can be avoided and to narrow the issues in dispute before the claimant issue proceedings.

Question 8

How do the pre-action protocols affect limitation periods?

Answer 8

They have no effect. If a party is at risk of running out of time to issue a claim, they should issue their claim then apply to the court to stay the proceedings whilst they comply with the pre-action protocol

Question 9

Do the codes need to be followed completely?

Answer 9

No, they are codes of best practice which only need to be followed generally.

Question 10

Can the period for the defendant to investigate and respond be varied?

Answer 10

Yes, by the consent of the parties.

Question 11

How much detail should a letter of claim include?

Answer 11

The level of detail will need to be varied to suit the particular circumstances. In all cases there should be sufficient information for the defendant to assess liability and to enable the defendant to estimate the likely size and heads of the claim without necessarily addressing quantum in detail.

Question 12

What can the parties apply to the court for at the pre-action stage?

Answer 12

pre-action disclosure, but not for any pre-action rulings.

Question 13

Which claims does the pre-action protocol for personal injury claims apply to?

Answer 13

Personal injury claims that are likely to be allocated to the fast track.

Question 14

How long does the pre-action protocol for personal injury claims recommend that the defendant be given before they have to respond to a claim?

Answer 14

Usually 3 months

Question 15

Do litigants in person have to comply with the pre-action protocols?

Answer 15

Yes, so far as it is possible to do so.

Question 16

What are the general aims of the personal injury protocol?

Answer 16

(1) encourage the exchange of early and full information about the dispute
(2) encourage better and earlier pre-action investigation by all parties
(3) enable the parties to avoid litigation by agreeing a settlement of the dispute before proceedings are commenced.
(4) support the just, proportionate and efficient management of proceedings where litigation cannot be avoided; and
(5) promote the provision of medical or rehabilitation treatment to address the needs of the Claimant at the earliest possible opportunity.

Question 17

What is the letter of notification?

Answer 17

A letter which the pre-action protocol for PI claims foresees (does not appear in the general protocol).

The claimant or his legal representative may wish to notify a defendant as soon as they know a claim is likely to be made but before the Letter of Claim is made

Question 18

What information should the letter of notification contain?

Answer 18

any relevant information that is available to assist with determining issues of liability/suitability of the claim for an interim payment

Question 19

What is the time limit for acknowledging the Letter of Notification?

Answer 19

it should be acknowledged within 14 days of receipt.

Question 20

What should the parties consider regarding rehabilitation?

Answer 20

the parties should consider whether the claimant has reasonable needs that could be met by medical treatment or other rehabilitative measures. Consideration of rehabilitation options should be an on going process throughout the entire Protocol period

Question 21

What are the claimant’s obligations in relation to sending a Letter of Claim under the PI protocol?

Answer 21

the claimant should send the defendant two copies of the Letter of Claim.

1 copy is for defendant, the second copy is for the defendant to pass on to the insurer (within 7 days).

Question 22

What should the Letter of Claim contain?

Answer 22

1. a clear summary of the facts on which the claim is based
2. an indication of the nature of any injuries suffered and the way that these impact the claimant’s day to day function
3. Any financial loss incurred by the claimant should be outlined with the heads of damage to be claimed.

Question 23

What is the status of letters of claim and response?

Answer 23

these are not intended to have the same formal status as statements of case in proceedings.

Question 24

Once C has sent a Letter of Claim pursuant to the PI protocol, what is the next step that D needs to take?

Answer 24

The protocol is drafted very stupidly on this point. Basically, it seems that if D has an insurer they need to reply to C identifying them. Oddly, this step is not really spelt out in the protocol. It’s implied in para 6.2. Consequently, no time limit is attached to D’s reply in which he identifies the insurer. Once D has identified the insurer the next steps are:

• The defendant must send a reply within 21 calendar days of the date of posting of the letter identifying the insurer. The purpose of this reply seems to be to identify any omissions/errors in C’s letter of claim. It is not a full investigation of C’s claim. Any additional info that is needed to investigate should be identified.
• Then send full response following investigation within 3 months of the date of acknowledgment of letter of claim

I think the issue is that they tried to develop a set of rules that applies whether there is an insurer or not. This has resulted in some unfortunate wording. But a key point to remember is that if C has not heard from either D or D’s insurer within 21 days (presumably of the date of posting the letter identifying the insurer) then C issue proceedings.

Question 25

What happens if the defendant/D’s insurer does not respond to the letter of claim within 21 days (pursuant to the PI protocol)?

Answer 25

the claimant is entitled to issue proceedings

Question 26

How long does the defendant (insurer) have to investigate following the date of acknowledgement of the letter of claim?

Answer 26

3 months

Question 27

Where the parties are outside of the jurisdiction what are the times limit for investigating the claim and for responding to the letter of claim extended to?

Answer 27

from 3 months and 21 days to 6 months and 42 days (respectively).

Question 28

What should happen if a defendant denies liability and/or causation?

Answer 28

they should put forward their version of events

Question 29

What is the PI Protocol’s position in relation to experts?

Answer 29

• It encourages the selection of joint experts on matters of quantum and liability. However, the expert selected is not a joint expert (this matters for the purposes of the rules in Pt 35). N.b. it expressly says that this guidance does not apply to cases likely to be allocated to the multi-track, which is odd because multi-track cases aren’t covered by the protocol anyway….
• Additionally, it encourages the claimant to obtain a medical report and disclosing this to the defendant. The defendant can then either agree or disagree with this. The claimant is the one who nominates the medical expert.
• Whenever a party intends to nominate an expert they should provide a list of suitable experts to the other side before doing so. The other side then has 14 days to object to any of them. Where the claimant is the one nominating the expert and does so in the original letter of claim, the 14 days are in addition to the time limit of 21 days that D/D’s insurer has to reply to C’s Letter of Claim (i.e. 21 + 14 - the time limits don’t run concurrently).
• If D objects to all the listed experts (idk what happens if C objects to all listed experts by D…the protocol only mentions D objecting, then the parties can instruct their own expert and the court will decide the costs consequences later.
• If D does not object to the expert(s) nominated, D cannot rely on their own expert report unless (a) C agress; (b) the court so directs, (c) C’s expert report has been amended and C is not prepared to disclose the original report.

My understanding is that the rules on nominating an expert by exchange of a list do not apply to the initial medical expert that C will use. This makes sense. Obviously when C is first injured they will need to see a doctor straight-away. The protocol merely foresees that C should disclose this report to D (although C cannot actually be compelled to do so). The procedure for selecting an expert applies to any other expert reports that the parties might consider desirable to obtain.

Question 30

In how many days must a party indicate an objection to any of the named experts?

Answer 30

14 days

Question 31

where the claimant has nominated an expert in the original Letter of Claim how long does the defendant have to object?

Answer 31

they have an extra 14 days to object after the expiration of the 21 day period within which they have to reply to the Letter of Claim

Question 32

What should the claimant send to the defendant if the defendant admits some liability?

Answer 32

1. medical reports
2. a schedule of past or future expenses
3. losses which are claimed

Question 33

What should happen if the defendant admits liability?

Answer 33

the claimant should send the defendant a schedule of any past and future expenses and losses which he claims.

Question 34

What should the schedule of losses include?

Answer 34

as much detail as reasonably practicable and should identify the losses that are ongoing. The claimant should keep the defendant informed as to the rate at which his financial loss is progressing.

Question 35

What should the parties do if the procedure set out in the PI protocol does not resolve the dispute between the parties?

Answer 35

they should look at the strengths and weaknesses of their own cases, consider the evidence and arguments to see if litigation can be avoided.

Question 36

What is the scope of the personal injury pre-action protocol?

Answer 36

it applies to claims that have a PI component and are likely to be allocated to the fast track. Applies to the entirety of those claims (not just the PI part). The general approach should still be followed in larger claims.

Question 37

What happens if the defendant objects to all of the claimant’s experts?

Answer 37

he can instruct his own expert, but at the allocation stage the court will determine whether the cost of two expert’s is necessary.

Question 38

What does the PI protocol say should happen if C obtains an expert report that they consider unsatisfactory or unhelpful?

Answer 38

It does not state what should happen if the claimant obtains a report which the claimant does not wish to disclose.

Question 39

If a dispute proceeds to litigation does the court expect the parties to have complied with a relevant pre-action protocol?

Answer 39

Yes.

Question 40

What are circumstances that might lead the court to decide that there has been a failure to comply with the personal injury pre-action protocol?

Answer 40

If a party has:

(1) not provided sufficient information to enable the objectives of the Protocol to be met.
(2) not acted within a reasonable time limit set out in a relevant protocol, or within a reasonable period; or
(3) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.

Question 41

What might the court order if there has been non-compliance with a pre-action protocol (PI or otherwise)?

Answer 41

(1) the proceedings are stayed while particular steps are taken to comply with the pre-action protocol.
(3) sanctions are to be applied

Question 42

What is the court’s role to ensure compliance with the practice direction and protocol?

Answer 42

the court will treat compliance with the pre-action protocol in the same way as taking a reasonable approach to ADR.

Question 43

What are the sanctions for not complying with the Protocol?

Answer 43

if a party is in breach of the personal injury pre-action protocol, the court may impose costs sanctions.

Question 44

What should litigation be?

Answer 44

a last resort

Question 45

What are some of the options for resolving disputes without commencing proceedings?

Answer 45

(1) discussions and negotiations
(2) mediation
(3) arbitration
(4) early neutral evaluation

Question 46

What is the most significant risk of an insufficient response?

Answer 46

a sanction or adverse costs order may be made

Question 47

When might non-compliance with pre-action requirements be justified?

Answer 47

(1) if the relevant limitation period is about to expire

(2) if there is a need to take action urgently.

Question 48

Does non-compliance of another party provide an excuse for failing to comply with pre-action requirements?

Answer 48

No, the appropriate course of action is to raise the non-compliance specifically so it can be addressed.

Question 49

Can a party’s silence in response to an invitation to engage in ADR be considered unreasonable by the court?

Answer 49

Yes

Question 50

What might the court do in response to non-compliance?

Answer 50

(1) staying the proceedings
(2) making a costs order
(3) an order depriving the party at fault from claiming interest

Question 51

Will the court strike out a claim for failing to follow reasonable pre-action conduct?

Answer 51

It is unlikely. However, a failure to engage in pre-action conduct might be an abuse of the court’s process that could cause a strike out of the claim

Question 52

What are the objectives of the pre-action protocols and what will the court expect the parties to have done in relation to them before commencing proceedings?

Answer 52

(1) understand each other’s position
(2) make decisions about how to proceed
(3) try to settle the issues without proceedings
(4) consider a form of ADR to assist with settlement
(5) support the efficient management of proceedings; and
(6) reduce the costs of resolving the dispute

Before proceedings -> exchange sufficient information to achieve these objectives

Question 53

Does the sending of the letter of notification cause time to start running in respect of the time available for the defendant’s Letter of Response?

Answer 53

No - but the Letter of Notice should be acknowledged within 14 days of receipt

Question 54

When must the defendant pass a copy of the letter of claim under the PI protocol to his insurers?

Answer 54

As soon as possible and, in any event, within 7 days

Question 55

What information should not be in the Letter of Claim under the PI protocol?

Answer 55

C’s National Insurance No and DoB - these should be given to D’s insurer once D has responded to the letter of claim

Question 56

Once the claimant has sent the Letter of Claim should they continue to investigate D’s liability und the PI protocol?

Answer 56

No - they should wait to see if D will dispute liability

Question 57

What are the steps foreseen by the PI Protocol and what are the time limits for each?

Answer 57

(1) Consider early notification (i.e. letter of notification) - this is optional. D should acknowledge this within 14 days of receipt.

(2) Letter of Claim

(3) D passes letter of claim on to insurer. This must happen as soon as possible, but no later than 7 days after receipt.

(4) D’s Response. Must happen within 21 days of the posting of the letter of claim.

(4) D’s/insurer’s investigation. Maximum of 3 months to complete this (special rules where accident occurred abroad/D is not in the jurisdiction).

Question 58

What are the general objectives of the pre-action protocols and what are the specific objectives of the PI protocol?

Answer 58

General objectives:
(1) understand each other’s position
(2) make decisions about how to proceed
(3) try to settle the issues without proceedings
(4) consider a form of ADR to assist with settlement
(5) support the efficient management of proceedings; and
(6) reduce the costs of resolving the dispute

Objectives of PI Protocol:
(1) encourage the exchange of early and full information about the dispute
(2) encourage better and earlier pre-action investigation by all parties
(3) enable the parties to avoid litigation by agreeing a settlement of the dispute before proceedings are commenced.
(4) support the just, proportionate and efficient management of proceedings where litigation cannot be avoided; and
(5) promote the provision of medical or rehabilitation treatment to address the needs of the Claimant at the earliest possible opportunity.

Question 59

Main differences between PI and general protocol

Answer 59

1. PI Protocol contains the additional objective of promoting the provision of medical or rehabilitation treatment to address C’s needs asap
2. PI protocol says that C may wish to send D/D’s insurer a ‘letter of notification’ (no mention of this in general protocol), which enables D to investigate the claim but which does not cause time for the response to start running
3. Much more detailed guidance on the letter of claim. Under the general protocol C is basically just told to outline the gist and send it to D who then generally has between 14 days and 3 months to reply depending on the complexity of the case. The PI protocol provides that: (a) C needs to send 2 copies of the letter to D so that D can send 1 of them to its insurer (within 7 days of receipt); (b) C needs to prove significant detail on the injuries suffered (including likely continued impact of theses) so that D can assess the likely quantum of losses; (c) C must not state their national insurance number of DOB in the letter to D, but should disclose this info to D’s insurer once they have been identified; (d) C should not continue investigating D’s liability after sending the letter of claim
4. More elaborate rules regarding the response required by D (or, more accurately, D’s insurer). D’s insurer will need to reply once (within 21 days), to fix any mistakes C may have made in their letter of claim. They will then have 3 months to investigate and to reply fully to C’s letter.
5. There are much more elaborate rules regarding expert reports under the PI Protocol than under the general one (the latter just says that parties should consider instructing a joint single expert)