C. Pre action steps

Question 1

What are the pre action steps?

Answer 1

They govern the steps a party with cause of action must take before issuing CF

Basically force parties to communicate to resolve issues so don’t end up in court.

Question 2

What are the pre action steps made up of?

Answer 2

1. Pre action Protocols = steps for certain types of claim i.e. debt, PI, Prof neg
2. Practice Direction on Pre-Action Conduct and Protocols = general guidance on all cases. Also applies to most damages & commercial cases.

Question 3

6 aims of the Direction

Answer 3

1. initiate & increase preaction conduct so parties better understand each other’s position.
2. encourage better & earlier exchange of info
3. encourage better pre action investigation between both parties.
4. allow chance for settlement before going to court
5. if do end up in court, can be solved quickly and efficiently as parties know each other’s issues.
6. ultimately reduces costs through efficient exch of info

Question 4

What steps should parties take before bringing proceedings?

Answer 4

TO CORRESPOND

• understand each other’s positions
• decide on how to proceed
• try and settle
• consider ADR to reach settlement
• if trial commences, proceedings are efficient
• reduce costs of dispute
• disclose key docs

Question 5

What must the pre-action steps be?

Answer 5

Reasonable and proportionate.

If disproportionate = not recoverable.

Question 6

If preaction fails in settlement…

Answer 6

parties should review their position and attempt ADR one last time before commencing proceedings.

Question 7

What if parties fail to follow?

Answer 7

= COST CONSEQUENCES

Costs: non compliant party may have to pay some/all of the o/s costs (penalty/indemnity basis = large sum)

Damages: losing D could pay interest on damages or winning C not get any interest on damages at all.

Question 8

What can the court do if there is a real possibility of settlement via pre action steps?

Answer 8

Can order the proceedings are stayed until pre action steps complied with

Question 9

What happens if a party fails to decline a Part 36 offer?

Answer 9

May have costs consequences

Question 10

Negotiations are made on ‘without prejudice’ basis. What does this mean?

Answer 10

Neither party can use settlement discussions/correspondence as evidence in court

Question 11

Within how many days should D respond to letter before claim?

Answer 11

14 days

90 days for complex matter

D sends acknowledgement and/or letter of response either accepting/disputing claim and why. Incl key docs.