6: The overriding objective and ADR Flashcards
What is the overriding objective of the CPR?
The overriding objective is for the courts to deal with cases justly and at proportionate cost, ensuring parties can participate fully and provide their best evidence.
Where can you find the overriding objective in the CPR?
Part 1: r1.1
What is a pre-action protocol?
A set of prescribed steps that should be followed in certain types of cases before a party issues a claim at court.
What is one of the main reasons for pre-action protocols?
To avoid litigation and get the parties to agree.
For which types of cases are pre-action protocols in force?
Debt claims,
Personal injury,
Professional negligence claims,
Certain claims in road traffic accidents (RTA)
What are the common features of the various different protocols?
Guidelines for:
- A recommended contents of a letter of claim
- the contents of a letter of response
- parties to provide pre-action information using standard forms and questionnaires
- parties to give pre-action disclosure
- to encourage parties to instruct a single expert witness
- to encourage parties to settle disputes without litigation (e.g., mediation or ADRs)
- A suggested bar on starting proceedings until a certain period has elapsed from the initial letter of claim
What might happen if parties fail to comply with pre-action protocols?
Failure to comply may lead to sanctions such as cost penalties further down the line.
What is expected in cases not covered by an approved protocol?
The court expects parties to adhere to the PDPACP.
What is the PDPACP?
Practice Direction – Pre-Action Conduct & Protocols is a standalone Practice Direction, not linked to any specific rule.
What should the parties do to comply with PDPACP?
- Set out in writing the concise details of their claim,
- Disclose key information relevant to the case,
- Take necessary steps to obtain expert evidence,
- Agree to an appropriate form of ADR
What should the letter before claim include?
- The basis on which the claim is made,
- Summary of the facts,
- What the claimant wants from the defendant,
- Explanation of any financial loss and how it was calculated
What additional elements should a good letter before claim have?
List essential documents,
Set out ADR form and invite the defendant to agree,
State the date for a full response,
Identify and ask for copies of relevant documents,
Draw attention to sanctions in paragraph 16 PDPACP,
Inform about potential proceedings and cost liability
What are the options for the defendant’s response to the letter of claim under paragraph 6(b)?
Accept the claim in whole or in part, or state that the claim is not accepted
What should a defendant’s response include if the claim is not accepted?
Reasons why the claim is not accepted,
Identify disputed facts,
State if they intend to make a counterclaim
What should a good response also include, which isn’t included in PDPACP?
Whether the claimant was wholly or partly to blame,
Agreement or alternative suggestions for ADR,
List of essential documents,
Copies of requested documents or reasons for not providing them,
Identification and request for further relevant documents
What do the protocols relevant to personal injury claims comprise of?
Personal injury protocol
RTA protocol: low-value personal injury claims in road traffic accidents
EL/PL protocol: low-value employers’ liability and public liability claims
When was the personal injury protocol introduced?
Introduced in 1998
Up to what amount of value can you use the RTA or EL/PL protocols?
Up to £25,000, after which you need to use the personal injury protocol
How has the application of the original personal injury protocol changed?
It now applies only to higher-value claims or where a claim leaves the original protocol.
What is the RTA protocol and why was it introduced?
Introduced to address concerns about increasing RTA personal injury claims, ensuring claimants receive compensation in a quicker and cost-effective manner.
How does the RTA protocol achieve its aims?
By setting a clear and rigid timetable for all parties, Fixed costs to limit lawyer fees and avoid disputes, Process conducted via a purpose-made electronic portal
What is the value threshold for claims under the RTA protocol?
The protocol applies to RTA claims with a value of £25,000 or below.
What are the three stages of the process of making a claim under the RTA protocol?
Stage 1: Early notification and acknowledgment
Stage 2: Obtaining medical evidence, offers to settle, and negotiation
Stage 3: Court involvement for compensation disputes
What is the CUE PI database and why does it exist?
Claims and Underwriting Exchange Personal Injury database. It records incidents reported by policy holders to their insurance companies, in order to reduce risk of fraud.
What does Stage 1 of the RTA protocol involve?
Search on CUE PI database,
Claim Notification Form (CNF) to insurer,
Insurer acknowledgment next business day and response of liability within 15 business days
What is the name of the Claim Notification form and what does it provide?
Form RTA1 - the CNF form. It provides full info on the circumstances of the accident, damages claimed for the vehicle and injuries suffered.
How is the RTA1 sent to the defendant and the defendant insurer?
Electronically to defendant insurer
First class post to defendant
What is required from the defendant insurer for the claim to remain in the RTA Protocol?
An admission of liability from the insurer
What does Stage 2 of the RTA protocol involve?
- Determining the amount of damages if liability is admitted
- Obtaining a medical report (Form RTA3 or from MedCo for soft tissue injuries)
- Sending a Stage 2 settlement pack (Form RTA5) to the insurer
- Insurer has 15 business days to respond
What will the Stage 2 settlement pack (Form RTA5) include?
Medical report
Schedule of damages (losses and expenses)
Offer to settle
What should happen if the claimant has suffered a soft tissue injury, e.g. whiplash?
The claimant’s lawyer should instruct a medical expert from a not-for-profit company, MedCo Registration Solutions (MedCo) for the independence of the report.
What does the Whiplash Injury Regulations 2021?
It includes a tariff of general damages for whiplash injured. Fixed payment are based on the period of suffering lasting up to 2 years. The court can increase these tariff payments by up to 20% in exceptional circumstances.
What happens if a counter-offer is made during Stage 2?
There is a further 20 business days “negotiation period” to reach an agreement.
What happens if no settlement is reached in Stage 2?
The claim moves to Stage 3.
What must the claimant send in Stage 3?
Court Proceedings Pack (Forms RTA6 and RTA7) including the party’s final settlement offer.
What are the types of hearings that can be applied for in Stage 3?
Paper hearing, Oral hearing
What is the timeline for paying damages and fixed costs once agreement is reached in Stage 3?
Damages and fixed costs must be paid within 10 days.
What is the value threshold for EL or PL protocol?
They have an upper limit of £25,000.
What are EL/PL protocols similar to?
Similar to the RTA protocol apart from timescales in Stage 1.
How long does the defendant insurer have to respond to liability allegations in an employer liability claim?
30 days.
How long does the defendant insurer have to respond to liability allegations in a public liability claim?
40 days.
Are claims in the EL/PL protocol subject to a portal process and fixed fees?
Yes, similar to the RTA claims.
What are the fixed cost fees for the RTA Protocol?
Stage 1: £200 (for claims £10,000 or less and £10,000.01–£25,000)
Stage 2: £300 for claims £10,000 or less and £600 for claims £10,000.01–£25,000
Stage 3: £250 paper hearing or £500 oral hearing (to include advocate’s fee)
How are the fixed costs for the EL/PL Protocol different from the RTA Protocol?
They are slightly higher:
Stage 1: £300 (for both claim ranges)
Stage 2: £600 for claims £10,000 or less and £1,300 for claims £10,000.01–£25,000
Stage 3: £250 paper hearing or £500 oral hearing
What additional costs will the claimant receive?
Disbursements such as fees for medical records, reports, and court fees.
What are the main reasons for a claim leaving the RTA or the EL/PL Protocols?
- Liability is disputed, including contributory negligence
- The value of the claim exceeds £25,000
- Allegation of fraud
- Defendant’s insurer fails to respond to the timescales in Stage 1
What happens to a claim that leaves the RTA Protocol?
It is pursued under the Personal Injury Protocol and the CNF is treated as the letter of claim.
Do fixed costs continue to apply after a claim exits the RTA Protocol/portal?
Yes, unless the case is allocated to the multi-track.
What is the Money Claim Online (MCOL)?
A system where a claimant may start an action electronically, allowing parties to view the progress of an action electronically.
What happens if a defence or part admission is filed in MCOL?
The action will be transferred to the defendant’s home court.
What are the restrictions on claims issued in the CCMMCC?
Restricted to specified sum claims not exceeding £100,000.
What are the advantages of ADR?
Speed, Flexibility, Client can withdraw at any time, Preserves business relationships, Privacy, Cost
What are the disadvantages of ADR?
Enforceability of awards, Limited disclosure, The opponent can withdraw at any time
What are common features of all protocols?
Templates for letters of claim, pre-action disclosure guidelines, and the use of single agreed experts.
What can happen if a client unreasonably refuses to participate in ADR?
The court may penalize them in costs, whether they win or lose.
How should negotiations/round table discussions be conducted?
On a without prejudice basis.
What is mediation?
A process where parties and an independent mediator gather at a neutral venue to try to reach a solution.
What are the advantages of mediation?
Parties agree to their choice of resolution, Tailored “win-win” results, Parties can walk away at any time, Independent and neutral mediator, Confidential process, Quicker and cheaper than litigation, Information obtained in mediation is without prejudice.
What are the disadvantages of mediation?
Hiring a mediator can be costly, Resolution is not guaranteed, Unsuitable for setting a legal precedent, Unsuitable for obtaining an injunction, May not be ideal if the client has an overwhelmingly strong case.
What is automatic referral to mediation for small claims?
Small claims allocated to the small claims track will be automatically referred to mediation if all parties agree, with some exceptions like personal injury claims.
What is arbitration?
A substitute for litigation where parties refer disputes to an independent arbitrator instead of going to court.
What are the two types of arbitration?
Judicial arbitration: Parties seek a final and binding decision, often involving expert determination.
Contractual arbitration: Parties are contractually bound to use a particular arbitration process for any dispute.
What are the advantages of arbitration?
No need for litigation, Quicker than going to court, Cheaper, especially if run by a trade body, Decision made by an impartial third party with expertise, Private and confidential process.
What are the disadvantages of arbitration?
Potentially costly expenses, Parties often represented by lawyers, adding to costs, Can be time-consuming, Decision is binding with very limited rights of appeal.
What is early neutral evaluation (ENE)?
A form of ADR where parties refer their dispute to a third party to get a preliminary assessment of the merits of the case.
What is the aim of ENE?
To determine the likely outcome of the dispute if it proceeds to trial.
What are the advantages of ENE?
Process is quick and confidential, Assists parties in reaching a reasoned settlement.
What is a disadvantage of ENE?
The option is non-binding.
What are the positive features of negotiation/round table discussions?
Voluntary, without prejudice, flexible, legal representation not essential, arranged at short notice, inexpensive.
In what types of cases is ENE commonly used?
Larger technical building and engineering or commercial cases.
In what types of cases is arbitration commonly used?
Construction and engineering claims.
