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 should a 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 timeframe must a defendant respond to a letter of claim under the Personal Injury Protocol?

What is the purpose of this timeframe, and in what situation is it waived, meaning the claimant can issue proceedings within the timeframe?

Answer 7

21 days

It allows defendant to make a settlement offer, and is waived if the limitation period will expire within the 21 days

Question 8

Under the Personal Injury Protocol, if the defendant responds to the letter of claim within 21 days, how long do they have to investigate the claim?

What is the claimant’s option if the defendant does not respond to the letter of claim within 21 days?

Answer 8

Three months

Claimant can issue proceedings

Question 9

If the claimant wants to instruct an expert, they must send a list of suggested experts to the defendant. How long does the defendant have to disagree?

What is the situation if no joint expert can be agreed upon?

Answer 9

14 days

Each party can instruct their own expert

Question 10

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

Answer 10

1. Stay the proceedings to allow the Practice Direction or a step in a protocol to be complied with
2. Order the non-compliant party to pay costs, or pay higher interest on damages
3. If the non-compliant party is the claimant, limit the amount of interest on the claim

Question 11

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

Answer 11

Yes

Question 12

What are three situations where the court is unlikely to criticise issuing proceedings without following a protocol?

Answer 12

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 13

Where the parties are likely to get embroiled in proceedings, what two criteria must be satisfied for pre-action disclosure to be available?

What is required for pre-action disclosure from a non-party?

Answer 13

1. The documents would be disclosed under standard disclosure rules
2. Disclosure now would assist in disposing the claim without proceedings

Disclosure from non-party would support claim or adversely affect opponent’s case, and is necessary to dispose of the matter or to save costs

Question 14

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

Answer 14

The property is:

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