9 Pre-action conduct

Question 1

What does a DQ ask about pre action conduct?

Answer 1

If YOU have complied, not if opposing party have

Question 2

When does the PD Pre Action Protocol apply?

Answer 2

Where no specific pre action protocol applies

Question 3

What are the 6 expectations the court will have of parties to have done (pre action protocol)

Answer 3

1. Understand each others position
2. Make decisions about how to proceed
3. Try to settle w/o proceedings
4. Consider ADR (may be asked to evidence this to court - silence may be unreasonable)
5. Support efficient management of those proceedings
6. Reduce costs of resolving dispute

Question 4

Steps to take before issuing a claim at court

Answer 4

1. C writing to D (letter of claim) and allowing 14 days to reply (3 months if complex)
2. Parties to disclose key documents relevant to the issue
3. Settling outside of court should be a constant consideration

Question 5

In low value claims parties should consider IF an expert is needed (default isn’t SJE - the default is no expert)

Answer 5

Courts permission “only” - may limit costs of expert

Question 6

Parties should consider if proceedings can be…

Answer 6

Avoided or at least narrow the issues

Question 7

What is the approach of the courts regarding pre action conduct?

Answer 7

Less bothered about following it to the letter more bothered about following it in spirit

Question 8

When will the court consider non compliance of pre action conduct protocol?

Answer 8

When deciding costs

Question 9

What type of claims does the PI PD pre action protocol apply to?

Answer 9

Fast track - both PI only and PI with other elements to the claim. But still follow for multi that are close to being on fast track

Question 10

What are the 7 main points of the PI PD pre action protocol?

Answer 10

1. Letter of claim to D 3 months for filing claim form at court (limitation considered)
2. Even LIP got to follow
3. Early and full exchange of information / investigations
4. Support just and proportionate effecient management of proceedings
5. Promote medical rehab
6. Quantification of loss, D admit what he can
7. Stocktake

Question 11

What are the reasons party may issue a stay with regards to pre action duties?

Answer 11

• where ADR is considered or pursued
• pending consent to medical exam
• whilst awaiting prognosis of PI
• where a P36 offer has been accepted

Question 12

If the all parties agree the stay it will automatically be for _______. Where not all parties agree, the court will decide (up to 6 months)

Answer 12

One month

Question 13

Where the time has elapsed for a defendant to file a defence and he has not done so and the claimant has not applied for a default judgment…

Answer 13

The claim will be stayed for 6 months, either party can apply to lift the stay

Question 14

What are the consequences for not complying with pre action protocol?

Answer 14

• could just be relieved of the obligation
• stay proceedings while steps taken
• sanction (costs - indemnity or standard)

Question 15

Parties must only take steps that are…

Answer 15

Reasonable and proportionate