Pre-Action Conduct Flashcards
What duty do solicitors and clients owe as a result of the Overriding Objective?
Two Parts
1) The OO must be borne in mind by the court (CPR 1.2) and the parties and their legal advisors (CPR 1.3).
2) Each party is required to help the court further the OO but has no duty or obligation to their opponent (Woodward v Phoenix Healthcare).
Name 5 practical effects of the Overriding Objective.
1) Ensure that the parties are on an equal footing,
2) Save expense,
3) Dealing with cases in a proportionate manner: to the amount of money involved, the importance of the case, the complexity of the issues and financial position of each party,
4) Ensuring the case is dealt with expeditiously and fairly, and
5) Allotting the appropriate share of the court’s resources to each case, bearing in mind the needs of other cases.
What degree of information should be shared prior to the commencement of proceedings?
Para 3 PDPAC - Exchange sufficient information, in order to:
(a) understand each other’s position,
(b) make decisions about how to proceed,
(c) try to settle issues without proceedings,
(d) consider a form of ADR to assist with settlement,
(e) support the efficient management of those proceedings, and
(f) reduce the cost of resolving the dispute.
What are the parties pre-action duties with regards to ADR?
Para 8 PDPAC - Consider ADR. “Litigation should be a last resort.”
When will the court take into consideration non-compliance with PDPAC?
Para 13 PDPAC - the court will take into consideration non-compliance when:
1) giving directions for the management of proceedings (CPR 3.1(4) to (6)), and
2) making orders for costs (CPR 44.2(5)(a)).
What criteria will the court use to determine if there has been a failure to comply with PDPAC?
Para 14 PDPAC - the court may decide that there has been a failure to comply when a party has:
(a) not provided sufficient information to comply with its objectives in para 3,
(b) not acted within the time limit set out in a relevant protocol or within a reasonable period,
(c) unreasonably refused to use a form of ADR, or failed to respond to an invitation to.
What orders or sanctions might the court make, if there has been a non-compliance with PDPAC?
Para 15(a) - an order that the parties are relieved of their obligations to further comply,
Para 15(b) - an order to stay proceedings to comply or further comply with PDPAC.
Para 15(c) - where non-compliance has led to proceedings that otherwise might not have commenced, or has led to unnecessary costs being incurred, then the court might impose sanctions.
How are costs determined for pre-action conduct?
The parties should only take reasonable and proportionate steps to identify, narrow and resolve the legal, factual or expert issues. Pre-action obligations should not be used as tactical device to secure an advantage over the other party (para 4 PDPAC).
The costs incurred in complying with pre-action conduct should be proportionate (CPR 44.3(5)). Where parties incur disproportionate costs in complying with any pre-action obligations, those costs will not be recoverable (para 5 PDPAC).
What details must be included in a Letter Before Claim?
Para 6(a), PDPAC states that the LBC should give concise details about the matter, which should enable the defendant to understand and investigate the issues without needing to request further information.
What details must the defendant’s letter of response to the LBC include?
Para 6(b), PDPAC states that the response should include:
1) confirmation as to whether the claim is accepted, and if not, the reasons why,
2) an explanation as to which facts and parts of the claim are disputed,
3) whether the defendant is making a counterclaim and, if so, it details,
4) explain whether the defendant agrees to any form of ADR proposal,
5) list the essential documents on which the defendant intends to rely,
6) enclose copies of any documents requested by the claimant, or an explanation as to why they will not be provided,
7) identify and ask for copies of any further relevant documents which the defendant would like to see.
What might the courts make of a defendant’s unwillingness to reply to a Letter Before Claim?
PGF II v OMFS:
The defendants silence or negative response to a letter before claim or ADR proposal may also be considered unreasonable.
