DR1 - Pre-Action Limitation

Question 1

What is the limitation period for breach of contract and claims in tort (excluding personal injury and latent damage cases?

Answer 1

Six years

Question 2

What is the limitation period for personal injury and fatal accident claims?

Answer 2

Three years

• the date the cause of action occured
• or the date of knowledge of the person injured.
• Time does not start to run until their 18th birthday

Whichever is later

Question 3

What is the limitation period for defamation claims?

Answer 3

One year

Question 4

What is the limitation period for unfair dismissal claims?

Answer 4

Three months

Question 5

What is the limitation for latent defects (tort case)?

Think of CHIMNEY

Latent damage = damage that is not immediately obvious. E.g. when a chimney is designed, built and installed by a defendant company which transpires several years after installation to be defective, causing damage to the rest of the building.

Answer 5

Later of:
a. 6 years from the cause of action OR
b. 3 years from requisite knowledge of right to bring claim

Overriding time limit : 15 years from the date of negligence

Question 6

In a tort action where the claimant’s injury is not apparent, when does the limitation period begin running?

Answer 6

When the claimant first gains knowledge that they have a claim

Question 7

In a tort action, when is the date of knowledge considered to be?

Answer 7

The point at which the claimant had sufficient knowledge of all the facts to commence investigations into the potential claim against the defendant

Question 8

In a tort action, the date of knowledge does not occur until the claimant has knowledge of what four things?

i.e. cause of action

Answer 8

1. That the injury is significant
2. That it is attributable in whole or part to the act or omission alleged
3. Knowledge of the defendant
4. Identity of any other people if it is they who did the conduct, not the defendant (e.g. hosptial / doctor situation)

Question 9

What is meant by the cause of action in tort of negligence?

Answer 9

Date of the causion of action = date in which damages occured

Not necessarily the date on which the original breach took place (duty, breach and damage must all occur before the cause of action arises

Question 10

In a tort action, in addition to knowing they have an injury, what must a claimant know?

Answer 10

Causation, i.e. that the injury arose from a negligent act or omission of an identified defendant

Question 11

In a tort action, what are the two options for the limitation period if the injured party dies within three years of the accrual date?

Answer 11

Three years from:

1. Date of death, or
2. Date of knowledge of the deceased’s personal representative

Question 12

What is the effect of a claim being outside the limitation period?

Answer 12

• Limitation period = last day which a claimant can issue proceedings against a defendant.
• If missed - defendant will have full defence

Question 13

What is the limitation period for an action to enforce a judgment?

Answer 13

6 years from when the judgment became enforceable, nor can interest be recovered after that period.

Question 14

What is the effect of the injured party dying on the limitation period in tort?

Answer 14

Where a limitation is six years, it reduces it from six years from the date of accrual to three years from the date of death

Question 15

In a contract action, when does the limitation period begin running?

i.e. what is the cause of action

Answer 15

On the date of breach.

Question 16

Where there is a latent defect, what limitation period is available in addition to the general rule of six years from the date of accrual?

Answer 16

Three years from the earliest date on which the claimant knew or **ought reasonably to have known **material facts necessary to bring an action

Question 17

What is the longstop limitation period for latent defects, after which no actions can be brought?

Think of long stop date in AFL

Answer 17

Fifteen years from accrual, which is usually completion of the project

Question 18

Procedurally, when does time begin to run relative to the date the cause of action accrues?

Answer 18

The day after the date of accrual

Question 19

Is it possible to add a new party to proceedings after the limitation period has expired?

Answer 19

No, unless an application to disapply the limitation period is made to the court

Question 20

When does the limitation period begin to run where a claimant is a minor?

Answer 20

On their 18th birthday

Question 21

If a claimant has capacity at the time of accrual and subsequently loses capacity, is the clock paused?

Answer 21

No

This is because if the claimant has ever had capacity at any time since the accident then the limitation period has started running. Once the limitation period starts running it does not stop.

Question 22

When can the court extend the limitation period?

Answer 22

Exceptional circumstances and at courts discretion.

1) parties have engaged in ADR that has not concluded by the limitation date
2) Limited personal injury case - where the prejudice to the claimant in not being able to bring the claim sbustantially outweighs the determinet to the defendant

• Court will allow a party an extension of the limitation period, but party requiring extension would need evidence to support those reasons in their application - court will then make a decision.

Question 23

What happens if a solicitor is instructed by a client on the date the limitation period is about to expire?

Answer 23

Where there is no good reason to apply for an extension of the limitation period.
* CPR rules - allow a party to ‘issue protectively’, means that a claim would be lodged with the court but not served on the defendant up to a maximum of 4 months after proceedings are issued.
* Enables solicitors to protect their client interest while at the same time conducting preliminary investgiations and exploring ADR with the defendant before the formal court process commences,

Question 24

Tweleve years ago, GBL instructed final design limited to design, build and install a fireplace in their great hall. 2 years ago, John director of GBL noticed a cracking around the brickwork surrounding the fireplace, but initially put it down to the age of the building. The cracking worsened in the last 6 months, causing GBL to instruct an expert to inspect it,

Expert concluded that fireplace was designed and installed defectively, which has led to around £600,000 of remedial work to the building structure in the great hall

Are GBL statute barred from issuing proceedings against first desgin limited?

Answer 24

No.

• Latent damage claim in tort.
• Start date for limitation period for GBL is 2 years ago, when they first deemed to have had knowledge of the damage
• As they are issuing a claim within 15 years of when the negligent act was carried out (as work was carried out 12 year ago) it is within the long stop date
  GBL will be entitlted to issue proceedings without running into limitation issues.

Question 25

What a legal cause of action?

Answer 25

A solicitor will be required to establish, before considering any procedural points whether there is a legal cause of action for the client’s claim.

A legal cause of action = legal basis on which a claimant issues proceedings. If no legal cause of action can be brought - no claim exists.

Question 26

What happens if a contract has a different limitation clause to the statutory limitation period?

Answer 26

• The claim should be commenced within the contractually specified limitation period.

Question 27

What is meant by a claim being statute barred?

Answer 27

Where a claim is no longer legally enforceable as it has not been issued in the prescribed limitation period.

Question 28

What are the special safeguards in place for children and protected parties (i.e. a person who is incapable of managing their own affairs due to a mental disorder)?

Answer 28

• As these individuals are considered in law to be unable to make the decisions required of a party to court proceedings, must have a litigation friend to act on their behalf
• Litigation friend - must be able to fairly and competently conduct procedings on behalf of th party and have no adverse interest

Question 29

What happens if the victims parent or guardian is a defendant?

i.e. you are injured in a road accident by fathers negligent driving?

Answer 29

Further safeguard is provided in these instances - only be valid if approved by the court.

Question 30

How should a defendant be sued?

Answer 30

Must be sued in their correct capacity - important to check whether they entered into a contract as
* individual
* sole trader
* partnership
* LLP
* Limited company

Question 31

Is a defendant always worth suing?

Answer 31

• Suing a defendant who is on the verge of either bankruptcy or liquidation - not worth suing as any judgement obtained would be impossible

If a client has any concerns about the prospective defendant’s ability to pay. Further enquiries should be made
* Search at companies house
* A bankruptcy search of an individual
* Instructing an inquiry agent (costs might be considered)
* Search internet

If the outcome of these investigations is that the defendant is struggling financially, although making a claim is possible, it would not be viable

Question 32

What is a specified claim?

Answer 32

• Fixed amount of money of debt.
• Amount is already known

Question 33

What is an unspecified claim?

Answer 33

• Court will have to conduct an investigation to determine the amount of money payable
• Not specific amount

If a claim is a mixture of specified and unspecified = entire claim will be treated as unspecified

Question 34

What is the pre-action procedure?

Answer 34

• Before issuing court proceedings, parties are required to comply with various pre-action protocols (debt claims, PI, construction and engineering, professional negligence).
• If no relevant protocol exists - practice direction on pre-action conduct and protocols (PDPAC) which contain general guidance to be followed in such cases

Question 35

What is the purpose of practice directions and pre-action protocols?

Answer 35

• Encourage better and earlier exchange of information so the parties are in a position to settle cases fairly and early without litigation
• More streamlined - ensure no civil claim escapes the requirement to follow pre-action procedure

Question 36

What are the elements of the practice directions and pre-action protocols?

Answer 36

1) Litigation should be a last resort
2) Parties should exchange sufficient information
3) The steps taken should usually include
a) the claimant writing to the defendant with concise details of the claim
b) the defendant responding within a reasonable time
c) the parties disclosing key documents to the issues in dispute
4) Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve legal, factual and or expert issues
5) Where a dispute has not been resolved after the parties have followed a Practice Direction, they should review their respective positions to see if proceedings can be avoided and at least seek to narrow the issues in dispute before the claimant issues proceedings
6) If a dispute proceeds to litigation, the court will expect the parties to have complied with the Practice Direction. A party may be sanctioned for failing to do so.

Question 37

What hapens if a person knowingly makes a false statement in a pre-action letter or other document prepared in anticipation of legal proceedings?

Answer 37

• May be subject to proceedings for contempt of court

Question 38

Where no specific protocol exists for a certain dispute, what will the courts expect a litigant to follow?

Answer 38

• Practice Direction and Pre-Action Conduct and Protocols.
• Where a specific protocol applies, these provisions override the Practice Direction
• Not mandatory for parties to follow guidance, however court will consider whether the parties have complied in substance with the PDPACP when deciding whether sanctions are appropriate

Question 39

What are the common steps of a claim as fond in pre-action protocols and practice directions on pre-action conduct and protocols?

Answer 39

1. Claimant sends Letter before claim including:
   * concise details of the claim
   * summary of the facts
   * what C wants from D (if money how this is calculated)
   * key documents
2. Defendant sends letter of response
   * within a reasonable time (14 days normal case, no more than 3 months if complex)
   * must confirm if the claim is accepted
   * if not, explain the reasons
   * indicate if there is a counterclaim
   * include the key documents
3. Claimant **replies ** and the parties consider
   * negogiation
   * ADR
   * appointment of experts
4. Stocktake before issuing proceedings, the parties should
   * review their positions
   * consider whether proceedings can be avoided
   * if not, narrow the issues in the dispute
5. Sanctions for non compliance
   * party at fault pays some or all of the opponent’s costs (perhaps on an indemnity basis)
   * C is deprived of some or all of the interests on damanges
   * D is required to pay a higher rate of interest on damages

Question 40

What is the pre-action protocol for personal injury claims?

Answer 40

1. Claimant should write initial letter of notification to potential defendant, giving brief details, to enable defendant to notify its insurer
2. Parties consider any rehabilitation needs (i.e. any ongoing medical and care needs) and how to address them
3. Claimant should write to defendant to give full details of the claim (Letter of Claim)
4. Defendant to acknowledge Letter of Claim within 21 days of receipt.
5. Defendant to investigate and send full letter of response within 3 months of letter acknowledging claim. If a defendant denies liability or quantum (or both) then
6. The parties should dislose key documents and engage in appropriate negogiations and make proposals for settlement. Claimant should send schedule of losses giving details of losses
7. Joint selection of expert (i.e. medical expert) or claimant discloses written report and defendant sends written questions.

Question 41

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

Answer 41

1. Summary of facts
2. Details of injuries and impact on day to day life
   3.Hospital attended
3. Indication of financial losses as known at this stage

Question 42

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

Answer 42

21 days

Question 43

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 43

D doesn’t respond: C can start proceedings

D does respond: D has three months to investigate the claim

Question 44

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

Answer 44

1. Where limitation period is about to **expire ** which would give the defendant an absolute limitatino defence against the action (parties should comply to the extent possible and apply for a stay)
2. Where the application is ‘without notice’ meaning that it is made with the intention of giving the defendant no warning, such as a freezing order on the assets to avoid them being disposed of
3. Where there is concern the defendant may seek to issue proceedings in another country
   4.

Question 45

What are the most likely consequences of failing to follow pre-action protocols?

Answer 45

• Costs and interest - increasing the amount of costs / interest to be paid / decreasing the amount to be received
• Court may stay the proceedings until the relevant steps are taken (Practice Direction)
• Court can ask for an explanation of non-compliance
• Court may order the party at fault to pay those costs on an indemnity basis

Court will consider the overall effect of the non-compliance on the other party and it is unlikely that the sanctions will be imposed for minor infringements.

Indemnity basis - any dispute between the parties as to the value of those costs will be resolved in favour of the receiving party - there is no requirement for the costs sought to be proportionate. This means that a party paying their opponent’s cost on an indemnity basis are much more likely to have higher costs liability than if they were awarded on the standard basis.

Question 46

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

Answer 46

Only if it will support the claim or adversely affect the opponent’s claim

Question 47

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

Answer 47

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

Question 48

What does the Personal Injury Pre-Action Protocol provide where an accident occurred outside of England and Wales and/or the defendant is outside the jurisdiction, as it concerns service of a letter of claim?

Answer 48

Defendant should acknolwedge the letter of claim within 42 days and has 6 months to investigate claim and confirm the position.

Basically double the time.

Question 49

What are the 2 rules relating to pre-action conduct and found in the two areas of the CPR?

Answer 49

1. Pre-Action protocol
2. Practice Direction on Pre-Action Conduct and Protocols

Question 50

What is the pre-action protocol for debt claims?

Small money claims.

Answer 50

• Only applies to business (creditor) brings a claim against individual or sole trader (debtor) not B2B contracts

Claimant must give full information including
* Debt owed
* Up to date statement of accounts with interest and charges and how debt can be paid
* Standard reply form, information sheet and financial statement forms are annexed to the protocol
* Defendant has 30 days to respond
* Court proceedings cannot be issued until 30 days has passed

Question 51

What is the pre-action protocol for professional negligence?

Answer 51

• Claimant intends to make a claim against professionals due to negligence

1. Claimant gives preliminary notice
2. Claimant sends Letter of claim
   * information about claimant
   * brief outline of claimants grievance against professional
   * any general indication of the financial value of the potential claim
3. Defendant (Professional) should be instructed to inform their insurers immediately and acknowledge notice within 21 days
4. Defendant (Professional) has 3 months to investigate claim and respond
5. Defendant sends Letter of response - sets out whether the defendant admits to the claim and if not send accompanying douments.
   * If the defendant denies the claim - stocktake, claimant may start proceedigs
6. If the defendant admits in whole or part and/or settlement offered
   * Claimant should instigate negogiations with the aim of resolving the claim within 6 months of the date of the letter of acknowledgement
   * Consider ADR

Question 52

Can welsh be used in civil proceedings?

Answer 52

• Yes- English and Welsh is treated equally.
• Provided the court is informed, hearings in Wales may be conducted entirely in Welsh if all the parties and witnesses consent and documents placed before the court may also be in Welsh

Question 53

In international claims -which country’s law apply?

Answer 53

• If there is an express declaration in contract that the law of England and Wales applies to its terms - this will be the position
• If no express declaration - parties will follow specific rules to determine the jurisdiction.
• Where the defendant is habitually a resident outside of the EU but spends time in England and Wales, provided the claim form can be served on the defendant while they are present in England and Wales - claim can be heard in UK
• Court view - allowing proceedings to be served here, the defendant accepts the court’s jurisdiction over them.

Usually, the parties will be able to nominate the governing law of their choice although there are some exceptions, for example, the Unfair Contract Terms Act 1977 contains requirements that apply to the contract regardless of any agreement to the contrary. If agreement has been reached in advance as to which country’s laws apply to the claim, the case will usually proceed on that basis.

Question 54

What is the position for claims outside of the EU?

Answer 54

• No specific default rules to cover this situation where there is no express declaration of governing law
• Would have to be settled by the court by way of a preliminary issue before the proceedings are commenced

Question 55

What is the position for claims inside of the EU?

Answer 55

• If there is no express declaration, basic rule is that proceedings will be issued in the local court to where the defendant is domiciled and where registered office is based

Question 56

Pierre, a French resident, negligently crashes into Martha while he is driving in England, causing Martha injury. Martha wishes to know what the governing law is and whether she needs to issue proceedings against Pierre in England and Wales or France.

How do you advise Martha?

Answer 56

• The governing law would be england and wales.
• As this is where the damage flowing from the negligent act took place. Martha would have the option to issue proceedings in France (as defendant is habitually resident there) or in England and Wales (as the damages resulting from the negligent act were incurred here)

For tort and contract claims. Claimant can elect that the case is heard in the state in which the contract was due to be performed or damages resulting from the tort were incurred, if they so wish.

Question 57

When does the limitation period start for a breach of contract claim?

Answer 57

• Cause of action accrues on the day of breach e.g day of delivery (Day 0)
• Limitation period starts day after (Day 1)