DR 3

Question 1

What are pre-action protocols?

Answer 1

They set out the steps that each party should take before commencing a legal action.

Question 2

What is the purpose of the pre-action protocols?

Answer 2

To focus the parties on trying to settle the dispute without litigation

Question 3

Do protocols have the same status as Civil Procedure rules?

Answer 3

No, protocols are not rules

Question 4

Where no specific protocol exists, what will the courts expect a litigation to follow?

Answer 4

Practice Direction on Pre-Action Conduct and Protocols

Question 5

What does the Practice Direction require?

Answer 5

1. Claimant should write to defendant with concise details of claim2. Defendant should respond within a reasonable time (14 days if straightforward case; no more than 3 months if complex)3. Parties should disclose key documents4. Court must give permission before an expert can be relied on (consider using single, joint expert)5. Consider ADR

Question 6

The personal injury protocol is primarily used for claims in what track, and what type of cases does it not apply to?

Answer 6

Fast track. Does not apply to clinical negligence.

Question 7

What four things does the template letter of claim under the personal injury protocol include?

Answer 7

1. Summary of facts2. Details of injuries and impact on day to day life3. Hospital attended with relevant reference number4. Indication of financial losses as known at this stage

Question 8

Within what time frame should a defendant respond to a letter of claim under the personal injury protocol?

Answer 8

21 days

Question 9

What is the option for the claimant if defendant does not respond to the letter of claim, and what is the option for the defendant if they do respond to the letter of claim?

Answer 9

D doesn’t respond: C can issue proceedingsD does respond: D has three months to investigate the claim

Question 10

How long does the defendant have to disagree with a list of suggested experts send by the claimant?

Answer 10

14 daysIf the defendant disagrees, each party can instruct their own.

Question 11

If the protocol fails to achieve settlement, how long must the claimant wait before commencing proceedings, in order to allow defendant to make an offer? In what instance is this requirement to wait waived?

Answer 11

21 days.Waived if the limitation period will expire imminently.

Question 12

What are the consequences of not complying with a pre-action protocol?

Answer 12

• A stay of proceedings to allow the Practice Direction or a step in the particular protocol to be complied with* Ordering the non-compliant party to pay the costs (or part of the costs) of the other party * If the non-compliant party is the claimant, restricting interest on the claim

Question 13

Does the court have discretion to relieve a party of their obligation to comply with the protocols?

Answer 13

Yes

Question 14

What are three situations where the court is unlikely to criticise issuing proceedings before compliance with a protocol?

Answer 14

1. Where the end of the limitation period is close2. Where a court order is required to protect or preserve evidence or assets3. Where there is concern the defendant may seek to issue proceedings in another country to avoid UK courts

Question 15

What are the three criteria to satisfy in order to receive pre-action disclosure?

Answer 15

1. Applicant and respondent are likely to be a party to proceedings2. The documents would be disclosed under standard disclosure rules3. Disclosure now would assist in disposing the claim without proceedings

Question 16

In what instances can pre-action disclosure be sought from a non-party?

Answer 16

Only if:* it will support the claim or adversely affect the opponent’s claim and * it is necessary to dispose of the matter fairly or save costs.

Question 17

One of what two criteria must be satisfied for pre-action disclosure of property?

Answer 17

The property is:1. Or may become the subject matter of proceedings2. Relevant to the issues that will arise in proceedings