Practice Direction - Pre-Action Conduct and Protocols Flashcards
Introduction
Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims. They are approved by the Master of the Rolls and are annexed to the Civil Procedure Rules (CPR).
This Practice Direction applies to disputes where no pre-action protocol approved by the Master of the Rolls applies. A person who knowingly makes a false statement in a pre-action protocol letter or other document prepared in anticipation of legal proceedings may be subject to proceedings for contempt of court.
Objectives of Pre-Action Conduct and Protocols
Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—
(a)understand each other’s position;
(b)make decisions about how to proceed;
(c)try to settle the issues without proceedings;
(d)consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e)support the efficient management of those proceedings; and
(f)reduce the costs of resolving the dispute.
Proportionality
A pre-action protocol or this Practice Direction must not be used by a party as a tactical device to secure an unfair advantage over another party. Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues.
The costs incurred in complying with a pre-action protocol or this Practice Direction should be proportionate (CPR 44.3(5)). Where parties incur disproportionate costs in complying with any pre-action protocol or this Practice Direction, those costs will not be recoverable as part of the costs of the proceedings.
Steps Before Issuing a Claim at Court
Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate.
The steps will usually include—
(a)the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;
(b)the defendant responding within a reasonable time—14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and
(c)the parties disclosing key documents relevant to the issues in dispute.
Experts
Parties should be aware that the court must give permission before expert evidence can be relied upon (seeCPR 35.4(1)) and that the court may limit the fees recoverable. Many disputes can be resolved without expert advice or evidence. If it is necessary to obtain expert evidence, particularly in low value claims, the parties should consider using a single expert, jointly instructed by the parties, with the costs shared equally.
Stocktake and List of Issues
Where a dispute has not been resolved after the parties have followed a pre-action protocol or this Practice Direction, they should review their respective positions. They should consider the papers and the evidence to see if proceedings can be avoided and at least seek to narrow the issues in dispute before the claimant issues proceedings.
Limitation
This Practice Direction and the pre-action protocols do not alter the statutory time limits for starting court proceedings. If a claim is issued after the relevant limitation period has expired, the defendant will be entitled to use that as a defence to the claim. If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Practice Direction or the relevant pre-action protocol, the parties should apply to the court for a stay of the proceedings while they so comply.
Points to note on the application of the protocols
The protocols are codes of best practice, to be followed generally but not slavishly. The court confirmed that it will look for substantive compliance and will keep in mind the need for proportionality, saving costs, and efficient progress of the litigation when assessing compliance with the practice direction.
The period for the defendant to investigate and respond (which varies between the protocols from 14 days to four months—Clinical Negligence) can be varied by the parties by consent. In simple cases where the defendant is already aware of, and has taken, some action, the full protocol period might not be necessary.
But, in more complex cases or where the origin of the dispute occurred some time previously, or where the defendant had no prior knowledge of the potential claim, a longer period might be justified.
Reasonableness is the watchword.
The court is much more interested in compliance with the spirit of a protocol than the exact letter.
The level of detail in a letter of claim will depend on the type and value of the case but should always include the main facts and circumstances, the nature of the dispute or claim(breach of contract, allegations of negligence etc.) and the remedy sought.
In the spirit of openness the claimant might want to enclose with the letter key documents and when money is being claimed the claimant should also provide as much information as possible on the value of the claim, at least sufficient to enable the defendant to form a view of the likely “bracket” of the damages.
If the claimant does not write to the defendant until towards the end of a relevant limitation period, the claimant should issue proceedings if necessary to protect the client’s position and should then either delay serving the claim form while the protocol is followed (theCPRprovide four months for service (r.7.5), or should serve the claim and invite the court to order a stay under r.26.5.
The defendant’s response letter should be detailed and not simply deny the claim.Failure to do so could be a breach of a protocol meriting a sanction. Also if a defendant is prepared to admit liability, the letter should say so clearly: not positively admitting liability but encouraging negotiations to lead to a settlement, is also not within the spirit of the reforms. This is because it leaves the claimant in a dilemma as to whether it is necessary to assemble the evidence to establish liability: doing so can substantially increase costs.
CPR r.14.1gives the court the power to allow a party to withdraw an admission but the burden rests upon the party applying. If liability is denied, the defendant must give proper reasons and should attach any relevant documents on which they rely, if these have not previously been disclosed.
Letters of claim and response are not intended to have the same status as a statement of case. It would defeat the purpose of the protocols if a party were penalised for subsequently clarifying his/her claim or defence when proceedings were issued.
However, parties should be wary of making substantial changes without explaining why this is necessary—as without good reason this could amount to “unreasonable conduct”.
The protocols differ on steps with regard to expert evidence but in every case parties are expected to consider and discuss the need for expert advice and reports, and whether a single report might be more appropriate and proportionate than retaining an expert each.
Most of the protocols do not require the parties to take specific steps to try to settle the claim pre-issue, either by making an offer to settle (underPt 36) or by meeting/negotiating. But they all strongly encourage early settlement discussions and use of anADRapproach. The courts are not sympathetic to parties who are unwilling at least to try to narrow the issues or to hold settlement discussions pre-issue.
It should be noted also that pre-actionPart 36offers to settle may have the same costs consequences as post-commencement offers, provided the offeror has provided the offeree with sufficient information to enable her to understand and evaluate the offer.
The protocols do not specify whether they apply to small claims. The common sense approach is that, provided a letter of claim is sent, proportionality should preclude the need in most instances to follow all the steps in a protocol. But the courts will make costs awards in small claims cases for “unreasonable conduct”.
Pre-action applications
While parties can apply for pre-action disclosure underr.31.16, generally they cannot apply to the court pre-issue for rulings on other matters
