DR II Pre-action Protocol Flashcards
Importance of time for bringing a lawsuit
IF a person attempts to commence proceedings by issuing a claim form after the limitation period has passed, D can raise the passage of limitation period as a defence to try to have the claim struck out
purpose of imposing limitation periods
so D is not prejudiced by having to defend a claim when important evidence may no longer be available or the evidence of witnesses may be less cogent after the passage of time.
Meaning of statute barred
Failure to commence a legal action with in the strict time limit. Solicitor failing to check this will be liable for being professional negligent.
Claim timetable for
breach of contract (not made by deed) Tort other than PI PI and fatal accidents defamation unfair dismissal
6 years 6 years 3 years 1 year 3 months
Discuss date of knowledge
Normally, time is measured from the accrual of action. sometimes, limitation begins to run when C first gains knowledge that they have a claim
date of knowledge is when C had knowledge of all the facts for the claims. it needs not be every precise detail. if C have sufficient information to commence investigations, time should begin to run.
Rule on time for claims involving death
If an injured party dies within three years of accrual date, the limitation period will be:
Three years from the date of death
Three years from the date of knowledge of the deceased’s personal representative.
If the 3 years’ period has lapsed before the death of C, claim is statute-barred.
make good clause:
A contract may have a defects lliability period applicable for a stipulated time after completion, duirng which period the contractor will be responsible for any defects that arise. This does not preclude claims on the 6 years limitation period for contract breach.
Meaning of latent defect
a defect in a property caused by a fault in design, materials, or workmanship that existed at the time construction was completed but that was not apparent at the time of completion.
The longstop date for a claim in latent defect is 15 years. action might start 6 years from the date of accrual, 3 years with relevant information f bring a negligent action.
Rule on time for C who are minors
If C is a minor, the clock for the limitation period will not start until C’s 18th birthday. that is in practice up until 21 years old for a PI claim for example.
Rule on time for C who lack capacity
clock does not start running until certification that the C is of sound mind. if C has capacity when the action accrues, the clock does not stop running even if C loses capacity during the limitation period
Effect of Fraud or concealment on time for bringing an action
the clock starts running from the discovery of the fraud/concealment. the same is for mistakes, the clock does not start to run until the mistake has discovered or could have been discovered with reasonable diligence.
Steps before bringing litigation according to Preaction protocol (Practice Direction)
(5)
C should wrrite to D with concise details of the claim
D should respond within a reasonable period of time (14 days simple; up to 3 months complex) D should explain if the claim is accepted or not, and why.
Both parties should disclose key documents relevant to the issues in dispute
Permission is needed to call up expert evidence. Parties are encouraged to use joint expert.
ADR should be considered and if rejected, evidence of having considered ADR may be needed.
What does a template letter of claim for a personal injury case need to include
A clear summary of the facts
Details of injuries sustained and the impact that they have on the C day-to-day life.
The hospital attended with relevant reference number
an indication of financial losses, such as they are known at this stage
According to the PI pre-action protocol, what must D do after receiving a letter of claim?
D must respond within the requested 21 days. if no C can start proceedings regardless.
if a response is provided, D has 3 months to prepare his case, at the end of which they must either deny or affirm the claim. for denial reasons must be given.
Early disclosure of infomation ( a list of relevant document) should be adjoined with the letter of denial.
Rules on expert witnesses
This is an overriding preference for both parties to use a joint expert witness. C is to send a list of candidate to D who within 14 days to agree or not. in disagreement, C and D can pick for their own.
