3. Pre-Action Considerations: Protocols and Applications

Question 1

What is the purpose of the pre-action protocols?

Answer 1

To focus the parties on trying to settle the dispute without litigation

Question 2

Do protocols have the same status as Civil Procedure rules?

Answer 2

No, protocols are not rules

Question 3

Where no specific protocol exists, what will the courts expect a litigant to follow?

Answer 3

Practice Direction on Pre-Action Conduct and Protocols

Question 4

What does the Practice Direction require?

Answer 4

1. Claimant should write to defendant with concise details of claim
2. Defendant should respond within a reasonable time (14 days if straightforward case; no more than 3 months if complex)
3. Parties should disclose key documents
4. Court must give permission before an expert can be relied on

Question 5

The personal injury protocol is primarily used for claims in what track, and what type of cases does it not apply to?

Answer 5

Fast track. Does not apply to clinical negligence.

Question 6

What four things does the template letter of claim under the personal injury protocol include?

Answer 6

1. Summary of facts
2. Details of injuries and impact on day to day life
3. Hospital attended
4. Indication of financial losses as known at this stage

Question 7

Within what time frame should a defendant respond to a letter of claim under the personal injury protocol?

Answer 7

21 days

Question 8

Personal Injury Protocol:
What is the option for the claimant if defendant does not respond to the letter of claim, and what is the option for the defendant if they do respond to the letter of claim?

Answer 8

D doesn’t respond within 21 days: C can start proceedings
D does respond within 21 days: D has three months to investigate the claim

Question 9

How long does the defendant have to disagree with a list of suggested experts sent by the claimant?

Answer 9

14 days

Question 10

If the protocol fails to achieve settlement, how long must the claimant wait before commencing proceedings, in order to allow defendant to make an offer? In what instance is this requirement to wait waived?

Answer 10

21 days.

Waived if the limitation period will expire imminently.

Question 11

What are the consequences of not complying with a pre-action protocol?

Answer 11

The court will consider non-compliance when giving directions for the management of proceedings or when making orders for costs

Question 12

Does the court have discretion to relieve a party of their obligation to comply with the protocols?

Answer 12

Yes

Question 13

What are three situations where the court is unlikely to criticise issuing proceedings before compliance with a protocol?

Answer 13

1. Where the end of the limitation period is close
2. Where a court order is required to protect or preserve evidence or assets
3. Where there is concern the defendant may seek to issue proceedings in another country

Question 14

What are the three criteria to satisfy in order to receive pre-action disclosure?

Answer 14

1. Applicant and respondent are likely to be a party to proceedings
2. The documents would be disclosed under standard disclosure rules
3. Disclosure now would assist in disposing the claim without proceedings

Question 15

In what instances can pre-action disclosure be sought from a non-party?

Answer 15

Only if it will support the claim or adversely affect the opponent’s claim.
For example a bystander having taken fotos / videos of a road while an accident happened.

Question 16

One of what two criteria must be satisfied for pre-action disclosure of property?

Answer 16

The property is:

1. Or may become the subject matter of proceedings
2. Relevant to the issues that will arise in proceedings

Question 17

Overview: Flowchart on pre-action considerations.

Answer 17