3. Pre-action Conduct

Question 1

What are pre action protocols?

Answer 1

PAPs explain and set out the steps courts normally expect parties to have taken before commencing particular types of civil claims.
Approved by master of the rolls.

Question 2

What if there is no pre action conduct protocol for a particular type of claim?

Answer 2

The practice direction applies.

Question 3

What may happen to someone who knowingly lies in a letter within PAP?

Answer 3

Proceedings for contempt.

Question 4

What are the objectives of the pre action protocol?

Answer 4

The objectives of the PAP are to:
Have the parties exchanged sufficient information before commencing proceedings to enable the parties to:
* Understand each other’s position
* Make decisions about how to proceed
* Try to settle
* Consider ADR
* Support efficient management of the proceedings
* Reduce costs

Question 5

How must the parties comply with remaining proportionate under the Pre-action protocols?

Answer 5

A PAP must not be used as a tactical device to secure an unfair advantage over another party.

Only reasonable and proportionate steps should be taken to identify, narrow, and resolve the legal, factual or expert issues.

The costs incurred complying with a PAP should be proportionate. Where disproportionate costs are incurred, those costs will not be recoverable.

Question 6

What should the parties do as part of the PAP?

Answer 6

Where there is a relevant PAP, parties should comply with that.

Where there is not, parties should exchange correspondence and information to comply with the objectives, bearing in mind proportionality.

These steps will usually include:
* Claimant writing to the defendant with concise details of the claim. Should include the basis, summary of the facts, what the claimant wants, and how the amount (if money is calculated).
* Defendant responding in reasonable time – 14 days in straight forward case and no more than 3 months in very complex one. Can be varied by agreement. Reply should include confirmation as whether the claim is or isn’t accepted and, if not accepted, the reasons why, together with an explanation of what facts and part of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim
* Disclosure of key documents.
(Parties can apply for pre-action disclosure.)

Question 7

What should the parties do if the PAP fails to bring a settlement?

Answer 7

Where a dispute has not been resolved after the parties have following a PAP/the PD, they should review their respective positions, consider the papers and evidence and see if proceedings can be avoided. They must at least seek to narrow the issues.

Question 8

What may happen if a party fails to comply with the PAP?

Answer 8

If a dispute proceeds to litigation and the parties (or a party) has not complied with the PAP/the PD, the court will take into account non-compliance when giving directions for management and when making orders for costs.

The court will consider whether all parties have complied in substance with the terms of the relevant PAP/PD and is not concerned with minor or technical infringements, especially when urgent.

Where there has been an infringement, the court may impose sanctions such as:

A, The party at fault pays the costs of the proceedings or part of the costs of the other side(s)
B, an order that the party at fault pay those costs on an indemnity basis
C, if the party at fault is a claimant who has been awarded a sum of money, an order depriving that party of interest for a specified period and/or awarding interest at a lower rate
D, if the party at fault is a defendant and has been ordered to pay the claimant some money, an order awarding interest on that sum at a specified period at a higher rate (not exceeding 10% above base rate) which would otherwise not have been awarded.

Question 9

When will there be a failure of compliance for the PAP?

Answer 9

There may be a failure of compliance where a party has:
* Not provided sufficient information for the objectives
* Not acted within a time limit/reasonable period
* Unreasonably refused to use a form of ADR/failed to respond at all to an invitation to do so

Question 10

Does the PAP/PD affect limitation periods?

Answer 10

The paps/pd do not affect limitation periods. If proceedings are started to comply with the time limit before PAPs have been followed, a stay should be applied for.

Question 11

What is the preaction protocol for personal injury claims?

Answer 11

The preaction for PI claims is intended to apply to those claims likely to be allocated to the fast track (for the whole of the claim, even if property damage is also alleged).
Not intended to apply to claims which proceed under:
* The PAP for low value personal injury in RTAs
* The PAP for low value PI (employers’ and public liability) claims
* PAP for clinical disputes
* PAP for disease and illness claims
* PAP for PI claims below the small claims limit in RTAs

Thus, it applies to fast track cases up to £25k but approach should still be followed in larger claims, except for occupational disease and clinical negligence.

This is what prospective parties should follow.
Timetable and arrangements can be varied, but court will expect an explanation as to why.
Where either party fails to comply, sanctions will be resorted to. Before imposing, the court will look at whether the parties have complied in substance and the effect of non-compliance on the other party.

Question 12

Does it matter for the preaction protocol for PI claims that a defendant is a LIP?

Answer 12

If a party is a LIP, they should still, insofar as is reasonably possible, comply with this protocol.

Question 13

What are the objectives of the preaction protocol for PI?

Answer 13

The objectives of the protocol are:
1. Encourage the exchange of early and full information
2. Encourage better and earlier pre-action investigation
3. Enable parties to avoid litigation by agreeing a settlement
4. Support the just, proportionate, and efficient management of proceedings where litigation is unavoidable
5. Promote the provision of medical/rehabilitation treatment to address the needs of the claimant at the earliest possible opportunity

Question 14

What are the key steps of the preaction protocol for PI?

Answer 14

1. Letter of notification ASAP (acknowledgement within 14 days)
2. Letter of claim to defendant and insurers
3. Response within 21 days (if out of jurisdiction, 42)
4. Disclosure
5. Instruction of joint experts (within 14 days of a list, the defendant should indicate objections)
6. Admissions. Delay of 21 days before issuing if admissions occur
7. ADR.
8. Quantification of loss.
9. If still unable to agree, stocktake. Notify about issuing 7 to 14 days before.

Question 15

What happens at the letter of notification stage for preaction protocol for PI?

Answer 15

The claimant submits a letter of notification as soon as possible, before a detailed letter of claim is sent (particularly where the defendant has no/limited knowledge of the incident or the claimant is incurring significant expense that the he hopes the defendant would pay for). This should advise the defendant of any relevant information that is able to assist with issues of liability/suitability of the claim for an interim payment and/or rehabilitation.

A letter of notification will not start the time for letter of response. However, a letter of notification should be acknowledged within 14 days.

Question 16

What happens at the letter of claim stage for preaction protocol for PI?

Answer 16

A letter of claim should send to the defendant two copies of the letter of claim (one for defendant, second for insurers within 7 days of the day upon which the defendant received it.

Level of detail will need to be varied to suit the particular circumstances, should always be sufficient information for the defendant to assess liability and to estimate the likely size and heads of claim without necessarily addressing quantum in detail.

Should have clear summary of facts and indication of nature of injuries suffered and the way these impact on claimant/prognosis.

Claimant’s national insurance number and DOB should be supplier to the insurer once defendant has responded to the letter of claim and confirmed the identity of the insurer.

These letters of claim and response are not to have the same formal status as in proceedings.

Question 17

What happens at the response stage for preaction protocol for PI?

Answer 17

Must be given in 21 days and level of detail will need to be appropriate in the circumstances. If there are any significant omissions from the letter of claim the insurer should identify them, including if a defendant is the wrong one.

Where there has been no reply within 21 days, the claimant is entitled to issue proceedings.

Compliance with this will be taken into account for costs matters.

Defendant will have a maximum of three months from date of acknowledgement of letter of claim to investigate. Defendant should reply by no later than the end of that period, stating if liability is admitted (re whether it occurred, whether it was caused by the defendant’s negligence, that the claimant suffered loss, and there is no limitation defence.

If outside of the jurisdiction, the time to respond goes from 21 to 42 days.

If defendant denies liability/causation, their version of events should be supplied and so should documents that are material to the issues.

An admission here may be binding.

Question 18

What happens at the disclosure stage for preaction protocol for PI?

Answer 18

Claimants’ solicitor can assist but identifying likely relevant documents. If no disclosure is forthcoming, a court can order pre-action disclosure.

Defendant is under a duty to preserve documents and other evidence.

Question 19

What happens at the instruction of joint experts stage for preaction protocol for PI?

Answer 19

For those claims which do not consist of or include a claim for whiplash, join selection should occur. Names should be discussed.

Within 14 days of providing a list, the other party may indicate an objection to one of them. If defendant objects to all listed experts, the parties may instruct experts of their own choice. If the defendant does not object, they shall not be entitled to rely on their own unless the claimant agrees, the court so directs, or the claimants report has been amended and the claimant is not prepared to disclose the original report.

Any party may send written question on the report within 28 days.

The cost of the report will be usually paid by the instructing first party with the costs of the expert borne by the party asking the questions. T

he parties may obtain further expert reports if permission by the court is granted.

For whiplash injuries, th claimant must obtain a fixed cost medical report instructed via a search of the online database of medical reporting organisations held by medco. In most cases, the medical expert will not need to see any medical records. Claimant may use a report in respect of a more serious injury suffered at the same time instead. Whiplash injures are those which would not exceed two years with mitigation.

Question 20

What happens if admissions occur for preaction protocol for PI?

Answer 20

The claimant should send medical reports and a schedule of loss if the defendant admits liability.

Claimant should delay instituting proceedings for 21 days in such a case unless it would have it become time-barred, to enable the parties to consider settlement.

Part 36 offers should be considered.

Preaction admissions may be withdrawn at anytime with consent or after proceedings have been issued with the court’s consent.

Question 21

What happens at the ADR stage for preaction protocol for PI?

Answer 21

Litigation should be a last resort. Parties should consider whether adr would help. Parties may be required to provide evidence that this has happened.

Question 22

What happens at the quantification of loss stage for preaction protocol for PI?

Answer 22

If the defendant admits liability, the claimant will send to the defendant a schedule of loss, even if provisional. Should contain as much detail as reasonably possible and should identify if the losses are ongoing.

Question 23

What happens if the preaction protocol for personal injury does not resolve the claim?

Answer 23

If the dispute has not been resolved through the protocol, the parties should undertake stocktake. If, after reviewing the strengths, weaknesses, and narrowing the issues litigation is STILL inevitable, the claimant is recommended to invite the insurer to nominate solicitors and do so 7 to 14 days before issue.

Question 24

Where may non-compliance be appropriate?

Answer 24

Non compliance with PAPs may be acceptable in cases such as:
* Where limitation is about to expire (as a stay might be ordered/issuing can be delayed)
* The order is urgent (injunctions)
Non-compliance by another party will not be an acceptable reason for non-compliance by the other. The appropriate course of action would be to raise that issue specifically and keep evidence of it.