Dispute Resolution - Pre-Action Protocols and Applications

Question 1

Pre-action protocols

Answer 1

Provide guidance for pre-litigation conduct

Common types of claim have their own pre-action protocols - in cases where no specific protocol exists courts expects litigants to follow the guidance set out in the Practice Direction

Question 2

Personal Injury Protocol

Answer 2

Predominantly claims in the fast track

Applies for claims up to £25,000

Does not apply to clinical negligence

Defendant must respond within 21 days - then has three months to investigate claim and either admit or deny liability

Parties encouraged to jointly instruct an expert - claimant should send a list of suggested experts and defendant has 14 days to disagree

If protocol fails claimant must allow 21 days to elapse to allow for an offer

Question 3

Construction and Engineering Protocol

Answer 3

Applies to all construction and engineering disputes irrespective of quantum

Question 4

Failure to comply with protocol

Answer 4

• Sanctions - e.g. non-compliant party may be penalised in the costs they can recover if successful

Question 5

Pre-Action Applications

Answer 5

1. Application for Pre-Action Disclosure: if documents are necesary for the party to investigate the claim properly
2. Application for Pre-Action Inspection of Property: subject matter of proceedings or relevant to issues that will arise in proceedings

Question 6

When issuing proceedings might be appropriate

Answer 6

1. Limitation period is close: claim form should be served and stay sought
2. Court order required to protect or preserve evidence or assets
3. Concern defendant may issue proceedings outside the jursidiction

Question 7

Pre-Action Applications

Answer 7

1. Pre-action Disclosure
2. Pre-action Inspection of Property

Question 8

Costs in Protocol Period

Answer 8

Unlikely to be able to recover costs if claim is not issued