Pre-action Flashcards
Define latent damages in the context of negligence claims.
Latent damages refer to injuries or losses that are not immediately apparent and may arise from negligence, often discovered after the initial incident.
How does the date of knowledge affect personal injury claims?
The date of knowledge is crucial in personal injury claims as it determines when the claimant became aware of the injury and its cause, impacting the limitation period for filing a claim.
How can disability impact the extension of claims?
Disability can impact the extension of claims by potentially allowing for longer time frames to file due to the claimant’s inability to pursue legal action.
Describe the time limit for bringing a personal injury claim.
A personal injury claim must be brought within 3 years of the latest of: (a) the date when the cause of action accrued, or (b) the date of knowledge of the person injured.
Define the term ‘date of knowledge’ in the context of personal injury claims.
The ‘date of knowledge’ refers to the date when the injured person became aware of the injury and its cause, as defined in section 14.
How does the Fatal Accidents Act 1976 protect dependents of deceased employees?
The Act provides a legal framework for dependents to seek compensation for their loss when an employee dies due to workplace negligence.
Describe the significance of ‘Date of knowledge’ in relation to the Fatal Accidents Act 1976.
In the context of the Fatal Accidents Act 1976, ‘Date of knowledge’ is viewed from the perspective of the dependent, focusing on their knowledge regarding the fatal injury to the deceased.
Explain the significance of section 33 in relation to extensions of time.
Section 33 provides the legal framework for the court to grant extensions of time for personal injury claims, emphasizing equitable considerations.
Do both breach of contract and negligence claims allow for contribution claims?
Yes, both breach of contract and negligence claims can allow for contribution claims if multiple parties are liable for the same damage.
What is the process for claiming extension due to disability?
Claiming an extension due to disability typically involves providing medical evidence of the disability and demonstrating how it affects the ability to pursue a claim within the standard time limits.
Describe the limitation rules for negligence actions related to personal injury claims.
The limitation rules for negligence actions do not apply to personal injury claims, as these claims have their own specific rules that take precedence.
How does the timing of damage affect the accrual of a cause of action in negligence cases?
In negligence cases, the cause of action accrues at the time the damage occurs, even if the claimant is unaware of the damage for a long period, such as in cases where hidden defects cause damage.
How does the ‘usual’ 6 year rule apply to negligence claims?
The ‘usual’ 6 year rule for limitation may not be fair in negligence claims where damage is not immediately apparent, as it could expire before the claimant is aware of the issue.
What is the potential unfair result of applying standard limitation periods to negligence claims?
Applying standard limitation periods to negligence claims can result in claimants being barred from seeking justice for damages they were not aware of until after the limitation period has expired.
Describe the limitation period for negligence claims that are not personal injury claims.
The limitation period is extended to the later of six years from when the cause of action accrued or three years from when the claimant had the requisite knowledge and right to bring a claim.
Define the long-stop limitation date for negligence claims.
The long-stop limitation date is 15 years from the date of the latest negligent act or omission that caused all or part of the damage.
What is required for the limitation period to start running in negligence claims?
The limitation period starts running when the claimant has knowledge of the facts that permit them to bring a claim in negligence.
Explain the significance of fraud, concealment, and mistake in limitation claims.
Fraud, concealment, and mistake can extend the limitation period for claims, as they may prevent the claimant from being aware of their right to sue.
Describe the time limit for enforcing a judgment.
An action to enforce a judgment cannot be brought after six years from when the judgment became enforceable.
How might a claim for contribution relate to a judgment?
A claim for contribution can arise in situations where multiple parties are liable, and it may be pursued after a judgment.
How long is the limitation period for both tort and contract actions?
The limitation period for both tort and contract actions is six years.
Do tort actions and contract actions have the same limitation period?
Yes, both tort actions and contract actions have a limitation period of six years.
Define the Fatal Accidents Act 1976.
The Fatal Accidents Act 1976 allows for claims to be made for damages when a person dies due to the negligence of another.
Define what constitutes a disability in the context of legal claims.
A person is considered under a disability if they are a minor (under the age of 18) or lack the mental capacity to conduct proceedings as defined by the Mental Capacity Act 2005.
How does the age of the claimant affect the limitation period for legal claims?
If the claimant is a minor (under 18), the limitation period does not start until they reach the age of majority.
What is the limitation period for personal injury claims when the claimant is under a disability?
The limitation period for personal injury or fatal accident claims is 3 years from when the disability ends.
Explain the limitation period for contribution claims in relation to disability.
The limitation period for contribution claims is 2 years, starting from when the claimant’s disability ends.
How long is the limitation period for most other legal cases when the claimant is under a disability?
The limitation period for most other cases is 6 years, starting from when the disability ends.
What is the impact of a mistake on the limitation period for legal actions?
The impact of a mistake on the limitation period is that if the action is for relief from the consequences of a mistake, the limitation does not start to run until the claimant discovers the mistake or could have discovered it with reasonable diligence.
What is the potential outcome if parties effectively engage in pre-action protocols?
Effective engagement can lead to limited issues in dispute and a foundation for expeditious conduct of proceedings if necessary.
Define pre-action protocols in the context of litigation.
Pre-action protocols are specific procedures set out by the court that parties are expected to follow before issuing proceedings, applicable to certain types of disputes.
Explain the priority of specific pre-action protocols over the Practice Direction.
If a specific pre-action protocol applies to a case, its provisions will take priority over the general provisions of the Practice Direction in case of conflict.
What is the aim of the Practice Direction in legal disputes?
The aim of the Practice Direction is to establish a standard of behavior for parties to follow in all cases.
When can parties proceed with litigation and not follow Pre-action protocol?
They may proceed with litigation despite not following the expected procedures if they can demonstrate exceptional reasons.
Define the expectations of parties regarding liability admission in pre-action protocols.
If a defendant intends to admit liability, it should do so early and clearly; if disputing liability, it should be done clearly with reasons.
What is the significance of considering alternative dispute resolution (ADR) in pre-action protocols?
Parties are expected to evaluate whether negotiation or ADR could help avoid court proceedings, and silence in response to ADR suggestions can be seen as unreasonable.
What is the consequence of non-compliance with pre-action protocols?
The court decides whether non-compliance with a pre-action protocol will result in adverse consequences, primarily related to costs and interest.
Define the potential actions the court may take regarding non-compliance.
The court may stay the proceedings until the relevant steps that have not been complied with are taken.
What happens if a claimant issues proceedings but later discontinues them?
If a claimant issues proceedings but later discontinues them, they typically pay the defendant’s costs, unless the defendant’s uncooperative pre-action conduct leads the court to order otherwise.
Describe the circumstances under which it may be acceptable not to comply with pre-action requirements.
It may be acceptable not to comply with pre-action requirements in limited circumstances such as when a limitation period is about to expire or when there is a need for urgent proceedings or an element of surprise.
Define a situation where urgent proceedings may be necessary without prior compliance.
Urgent proceedings may be necessary when a party fears that the opponent will destroy documents, justifying an application for a search order without prior notice to the other side.
How can parties ensure compliance with pre-action requirements after issuing proceedings due to urgency?
Parties can ensure compliance with pre-action requirements after issuing proceedings by applying for a stay of proceedings, allowing them to follow the pre-action procedure.
Describe the Pre-action Protocol for Personal Injury Claims.
It is a set of guidelines that applies to personal injury claims that do not fall within another pre-action protocol and are likely to be allocated to the fast track, typically involving claims valued up to £25,000.
What is the purpose of the Letter of Claim in a personal injury claim process?
The Letter of Claim is sent by the claimant to the defendant to provide full details of the claim.
What is the timeframe for a defendant to acknowledge a Letter of Claim?
The defendant must acknowledge the Letter of Claim within 21 days.
What is the defendant required to do after acknowledging the Letter of Claim?
The defendant must investigate the claim and send a full Letter of Response within 3 months of acknowledging the claim.
What information should the claimant provide regarding losses?
The claimant should send a schedule of losses detailing the losses incurred.
How is a quantum expert selected in a personal injury claim?
The parties should jointly select a quantum expert, or the claimant can disclose their report while the defendant sends written questions.
How should the parties proceed after the response letter is sent?
The parties should disclose key documents, engage in appropriate negotiations, and make proposals for settlement.
