3. Pre-Action Considerations: Protocols and Applications

Question 1

What is the purpose of the pre-action protocols?

Answer 1

Protocol the parties must follow before conducting litigation. Intends to focus the parties on trying to settle the dispute without litigation- Overriding Objective

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 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)
   * If def does not respond- can proceed with claim
   * If def does respond, def can have 3 months to investigate before proceeding to the next pre-action step
3. Parties should disclose key documents
4. Parties should consider whether they need an expert and request permission from the courts
5. Parties should consider ADR
6. Parties should take stock of their positions.
   - Claimant should wait 21 days before commencing proceedings to allow def to make an offer, however this is waived if limitation period will expire imminently

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 (personal injury claims up to £25K). Does not apply to clinical negligence claims or minor traffic accidents (below £25k)

Question 6

What 6 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. Request for def’s insurer info
5. Indication of financial losses as known at this stage
6. Suggestions of experts to appoint if necessary

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

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: C can start proceedings
D does respond: 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

Could be penalised with costs recoverable

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 (applying to court to view other party’s documents before issuing claim)

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 resolving 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

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

How are costs usually distributed in litigation?

Answer 17

Unsuccessful party in litigation is ordered to pay the successful party’s costs. This includes costs incurred during the pre-action protocol stage

Question 18

How are costs distributed if the parties resolve the dispute during the pre-action phase?

Answer 18

The parties must agree on the costs as part of the settlement stage

Question 19

If the parties can’t resolve disputes during the pre-action phases but the claimant drops proceedings, can the defendant recover for costs incurred in complying with the protocol?

Answer 19

No

Question 20

when is non-compliance with pre-action protocol ok

Answer 20

1) limitation period is about to expire;
2) another reason for urgent proceedings/element of surprise

Question 21

what is the punishment for failure to abide in ADR

Answer 21

court can stay proceedings

you can be penalised in costs

courts directions may be influenced too

Question 22

what is mediation

Answer 22

common form of pre-action; and failure to comply in a mediation agreement results in a breach of contract

Question 23

what is arbitration

Answer 23

it is a form of ADR and it is private so the results are binding

Question 24

can the courts order the parties to engage in ADR