3: Pre-action Conduct Flashcards
Before commencing proceedings, courts expect parties to have exchanged sufficient information to -
- Understand each other’s position;
- Make decisions about how to proceed;
- Try to settle issues;
- Consider a form of ADR to assist settlement;
- Support efficient management of proceedings; and
- Reduce the costs of resolving the dispute.
What happens if the pre-action protocol is used as a tactical device to secure an unfair advantage?
The pre-action protocol must not be used by a party as a tactical device to secure an unfair advantage over another party. Costs incurred in complying with pre-action protocol should be proportionate. If disproportionate, it will not be recoverable.
Steps before issuing a claim at court
The claimant should write to the defendant with concise details of the claim.
The letter should include:
- The basis on which the claim is made;
- A summary of the facts;
- What the claimant wants from the defendant; and
- If money, how the amount is calculated.
The defendant must respond within a reasonable time – 14 days in straight forward cases, no more than 3 months in very complex ones.
The defendant must respond within a reasonable time – 14 days in straight forward cases, no more than 3 months in very complex ones. The reply should include confirmation:
- whether claim is accepted; and if not
- the reasons;
- explanation which facts and parts of the claim are disputes; and
- whether the defendant is making a counterclaim + details
What does the courts do with experts?
The court must give permission before expert evidence can be relied upon, and the court can limit the fees recoverable.
If it is necessary to obtain expert evidence, particularly in low value claims, the parties should consider using a single expert, jointly instructed by the parties, with the costs shared equally.
If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate or refuse to participate in ADR
= WHAT HAPPENS?
might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.
wILL THE Court will concerned with minor or technical infringements?
The court will not be concerned with minor or technical infringements of the PD, especially when the matter is urgent.
There may be failure to comply with PD when:
- Not provided sufficient information;
- Not acted within a time limit or reasonable period; or
- Unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.
Where there has been non-compliance with pre-action protocols, the court may order that:
- The parties are relieved of their obligation to comply further with the PD
- Proceedings are stayed
- Sanctions are to be applied
The court will consider the effect of non-compliance when deciding whether to impose any sanctions which may include:
- An order that party at fault pays costs of proceedings;
- An order that party at fault pays those costs on an indemnity basis;
- If party at fault is claimant who was awarded a sum of money, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded;
- If party at fault is a defendant, and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.
Normal protocol steps
- Parties expected to exchange sufficient information to enable them to understand each other’s position, and to be able to enter into meaningful negotiations or ADR processes.
- Taking tactical advantage is deprecated.
- Costs in complying with the protocol must be kept proportionate.
- FIRST: Claimant should send a letter of claim the defendant with concise details of the claim and the remedy sought.
- SECOND: D should send a written response within a reasonable time. 14 days in an easy case; maybe 3 months in a very complex claim.
- The response must say if liability is admitted; the grounds on which liability is denied; and whether a counterclaim will be advanced.
- Both parties must disclose key documents to each other.
- If an expert is necessary the parties should try to minimise how much the expert evidence will cost. A single joint expert may be best.
- Parties should consider whether to use ADR.
- Where the claim is not resolved by following the protocols, the parties must stocktake by reviewing their respective positions.
- They should at least try to narrow the issues in dispute.
Limitation about to expire
Claimant must issue a claim form within time. Complying with the protocol is
and excuse or not?
Complying with the protocol is no excuse for issuing late. If needs be, the claimant can ask for a stay of the proceedings after issue so the remaining steps can be taken.
Non-compliance with Protocols
The requirement is to comply with the substance of the protocol.
A failure to comply may be based on:
A failure to comply may be based on:
(a) not providing sufficient information
(b) not acting within the time limits in the protocol
(c) unreasonably refusing to use ADR
Non-compliance with Protocols
Non-compliance may be taken into account:
What may the court order:
- when the court gives case management directions
- when the court makes costs orders (eg at trial)
The court may order:
(a) the parties to be relieved from further compliance with the protocol
(b) a stay of the proceedings to allow time for compliance
(c) the imposition of sanctions
Sanctions for non-compliance with pre action protocols
payment of costs
(b) payment of costs on the indemnity basis
(c) depriving C of interest on their damages
(d) ordering D to pay interest on any damages at up to 10% above base rate
