Civil courts and other forms of dispute resolution - Pre-trial procedures Flashcards
Explain the process of taking a civil action to court (pre action protocol)
Explain the process of taking a civil action to court (pre action protocols/pre trial procedure). (8 marks)
What legislation introduced pre-action protocols and what did this do
Introduced by the **Civil Procedure Rules 1999 **which encourage parties to cooperate with each other and enable as much to be done before the trial as possible.
The appropriate pre-action protocol must be followed. What does pre-action protocol involve
Most people making a claim do not want to start a court case unless they have to. They will first of all try to negotiate an agreed settlement with the person who caused their injuries or damaged their property. Using a method other than going to court is known as ADR.
Parties are encouraged to give information to each other in an attempt to prevent the need for many court cases to be started. So before a claim is issued, especially in personal injury cases, a pre-action protocol has to be followed. This is a list of things to be done and if the parties do not follow the procedure and give the required information to the other party, they may be liable for certain costs if they then make a court claim.
What is pre-action correspondence and what is the aim of it
A period of negotiation before proceedings in which they discuss the details with each other and to cooperate in making pre-action investigations regarding evidence.
Broadly speaking, what will occur during the pre-action correspondence
- After receiving instructions to act from a client, a solicitor will usually enter into correspondence with the other side in any action
- There is usually a period of negotiation before proceedings are commenced.
- Both sides of the dispute are expected to discuss the details with each other and to cooperate in making pre-action investigations regarding the evidence.
- This will enable both sides to be in a position where offers to settle the claim can be made at an early stage without needing to go to court.
What is the next step to the pre-action protocol
Letter of claim
What is a letter of claim
Pre-action protocol dictates that a detailed letter known as a letter of claim be sent to the defendant outlining the reasons for brining the case.
In order for the letter of claim to ensure a swift resolution of the claim, what must be done within the letter
Liability must be outlined clearly in the letter of claim.
Why is the letter of claim important
Because it not only acts as a detailed outline of the case, but it also serves to initiate the claim.
What is the next step of the pre-action protocol
Standard Disclosure Procedure
What is the standard disclosure procedure
This is where each party must make and serve on every other party a list of documents
What is the next step of the pre-action protocol after standard disclosure procedure
Response to a letter of claim
What is the time limit based around pre-action protocol procedure
Pre-action protocol procedure is based around the time limit of 21 days
What happens if the defendant does not respond to the letter of claim within that time
The claimant must instigate legal proceedings.
What happens if the defendant DOES respond to the letter of claim within the time limit
The claimant must allow three months to have the claim investigated on his behalf during which time the claimant will have his own investigations undertaken.
What happens if the defendant admits liability after the three months time limit
An attempt to settle the claim through a part 36 offer (without prejudice) should be made. If the case is settled by this proposal then the case is concluded.
If the defendant does not admit liability after three months time limit, what must happen
A solicitor must be instructed to institute proceedings by filing and serving a claim form called N1 and the Particulars of Claim.
Then what must the defendant do
The defendant should enclose with the letter of reply to the claimant or his solicitor, documents in his possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings
What is the next step once a defence has been filed
Allocation Questionnaire:
Once a defence has been filed, the court will use its powers of case management by sending out an allocation questionnaire - Form N150 - to each party.
If it is clear that the case is destined for the small claims track, form N149 will be used instead.
The parties have 14 days to return the allocation questionnaire and the claimant must also pay the allocation fee.
The court will allocate the case to one of three tracks, based on the infomation contained in the allocation questionnaires.
Under what act and section may the court hold an allocation hearing if it is not clear which track the case should be allocated to
Under CPR 26.5 (4)
What is a part 36 offer
A party involved in litigation can adopt a pro-active, tactical approach by making what is known as a part 36 offer.
The general principle is that the person making the offer does so in good faith, with the offer being made as part of a genuine attempt to settle the case.
An offer being made as part of a genuine attempt to settle the case not in court.
Why will any part 36 offer not been seen by the court until after judgement of the case
Part 36 offers deals with offers made on a ‘without prejudice’ basis, which means any part 36 offers will not be seen by the court (if the case gets that far) until after the judgement has been made and an appropriate level of compensation awarded by the judge.
Any offers on the value of the claim are intended to be without any admission on liability; what does this mean
This means that when an offer to settle the claim is made, the party making it does not necessarily admit liability.
A part 36 offer can be accepted within how many days of it being made
21 days
What is the potential risk of not accepting the part 36 offer
If the judge awards less compensation than the amount that was suggested in the part 36 offer then the claimant will only be entitled to this lesser amount.
The judge might also order the claimant to pay the defendants legal costs from the date of when they could have accepted the part 36 offer (i.e 21 days after the offer was first made)
