Disputes - Pre-Action Protocols (3) Flashcards
What are pre-action protocols?
Pre-Action Protocols: Prior to formal commencement, parties must comply with Pre-Action Protocols (annexed to the CPR).
(1) General Protocols: General ‘Practice Directions on Pre-Action Conduct’ exist where no unique protocols exist. This covers breach of contract.
(2) Specific Protocols: Specific pre-action protocols exist for certain claims, such as debt, personal injury and professional negligence.
What are the general principles of all pre-action conduct protocols?
General Principles: General principles exist in respect of all pre-action conduct.
(1) Last Resort: Litigation should be a last resort - ADR is encouraged.
(2) Transparency: Information should be shared to ensure best decisions, early settlement, and lower costs.
(3) Reasonable and Proportionate: Parties should take only reasonable and proportionate steps at this stage.
(4) Review: Parties should review their positions to narrow issues in dispute, and consider ADR.
What is the Practice Direction on Pre-Action Conduct (General)?
PD on Pre-Action Conduct: The ‘PDPAC’ provides a catch-all on pre-action conduct.
Requirements
Requirements: The PDPAC requires:
(1) Information Exchange: Relevant information must be exchanged to sufficiently understand the issues.
(2) ADR/Settlement: Parties must consider and attempt ADR and settlement. Evidence may be later required.
(3) Reasonable and Proportionate: Parties should take only reasonable and proportionate steps, suitable to narrow the legal, factual and expert issues.
Letter Before Claim
Letter Before Claim: Claimants must issue a brief letter before claim to the Defendant.
(1) Contents: Summary of facts, sum due, and calculation, alongside any action required and a request of relevant documents.
(2) Response: Defendant must respond within a reasonable time, identifying admission or dispute, and any counterclaim.
Simple Cases: Response within 14 days.
Complex Cases: Response up to 3 months.
(3) Disclosure: Key documents for issues in dispute should be enclosed in letter and response.
Penalties
Penalties: Failure to adhere can result in sanctions to reflect waste of time and costs.
(1) Costs: Parties may be ordered to pay opponent costs (usually on indemnity basis).
(2) Interest Deduction: Parties may lose some or all of interest on damages recovered.
(3) Interest on Costs: Parties may be required to pay additional interest on costs (up to 10% above base rate).
(4) Contempt of Court: Parties who make false statements in a pre-action letter may be subject to contempt of court proceedings.
What is the pre-action protocol for debt claims?
Debt Claims: Specific pre-action protocols exist in respect of debt claims against individuals/sole traders made by businesses/public bodies.
Letter Before Claim
Letter Before Claim: Claimants must issue a brief letter before claim to the Defendant.
(1) Contents: Full information on debt, up-to-date statement of account with interest and charges, repayment plan.
Forms: Form should be attached to a Reply Form, Information Sheet, and Financial Statement to encourage settlement.
(2) Response: Defendant must respond within 30 days (proceedings cannot be issued prior).
Extension: Extra time should be permitted if the defendant seeks legal or debt advice, or in order to pay.
What is the pre-action protocol for professional negligence?
Professional Negligence: Specific pre-action exists in respect of professional negligence claims.
Notices and Letters
Notices and Letters: A greater number of letters and notices are served here.
(1) Preliminary Notice: Claimant gives preliminary written notice of claim, outline claimant information, grievance details, and indication of claim value.
Informing Insurer: The defendant should inform their insurance provider immediately.
(2) Letter of Acknowledgement: The defendant must acknowledge in writing the notice within 21 days.
(3) Letter of Claim: The claimant should write a full letter of claim outline issues and attach key documents.
(4) Letter of Acknowledgement: The defendant must acknowledge in writing the letter of claim within 21 days.
(5) Letter of Response: The defendant then has 3 months to investigate and respond. They must state admissions and denials, and the reasoning (with accompanying documents).
Settlement or Proceedings
Settlement or Proceedings: After service of documents, parties should determine settlement or full proceedings.
(1) Letter of Settlement: The professional may attempt to settle all or part of the claim.
(2) Negotiation: If liability is not wholly denied, parties may attempt to negotiate settlement within 6 months of the second letter of acknowledgement.
(3) Proceedings: If settlement cannot be reached, parties should proceed to formal litigation (but narrow issues).
What is the pre-action proticol for Welsh language?
Welsh Language: Specific pre-action exists in respect of proceedings in or connected to Wales.
(1) Welsh Hearings: Where requested and approved by both parties, the court can conduct hearings entirely in Welsh. An interpreter will be paid for by the court where necessary.
