Pre-action conduct

Question 1

Before commencing proceedings - court will expect parties to have exchanged sufficient information to…

Answer 1

understand each other’s positions
make decisions on how to proceed
try to settle issues without proceedings
consider ADR
support efficient management of proceedings
reduce costs of resolving the dispute

Question 2

What is the criteria to allow steps/costs to be recovered, incurred to identify/narrow legal factual and expert issues?

Answer 2

reasonable and proportionate

Question 3

where there is no pre-action protocol specified, what steps will parties normally take?

Answer 3

• C write to D with concise details of claim
• D should respond within a reasonable time (14 days-3 months depending on complexity)
• parties should disclose key documents relevant to issues in dispute

Question 4

what are the constraints on expert evidence at this stage?

Answer 4

• court must give permission
• court may restrict areas/issues experts can be instructed on
• court can instruct a single joint expert to be engaged - shared cost

Question 5

Where it is nearing the end of the limitation period, and parties have not yet engaged with pre-action protocol - what should a C do?

Answer 5

Issue proceedings ASAP within time limit, and immediately apply for a stay to comply with pre-action protocol.

Question 6

where the dispute has not been resolved at the end of the protocol , and litigation is necessary, what should parties do to further OO?

Answer 6

stocktake/list issues and attempt to narrow areas of dispute

Question 7

Reasonableness in practice (some examples)

Answer 7

• parties should seek to facilitate each other as much as possible, by agreeing extensions/sharing documents in the spirit of openness, agree to stays of proceedings
• LoC/repsonse not same status as an SoC , but claim letter should be as accurate as posisble, not to be departed heavily from and Ds response not full defence but should still substantiate any denial

Question 8

pre-action applications…..

Answer 8

applications for pre-action DISCLOSURE , normally allowed
aplications for pre-issue rulings - e.g non-liability of an insurer - as this may halt proceedings totally

Question 9

What value PI claims does the PI protocol apply to?

Answer 9

potential fast-track cases up to £25,000
general approach should be followed in larger claims (occ disease and clin neg have own protocol)

Question 10

in PI protocol - how long does D have to ack/respond to LoC

Answer 10

ack - 21 days
respond - 3 months of ack

Question 11

instructing experts - parties should cooperate by

Answer 11

• C give D 2+ names
• if D does not object to at least 1 within 14 days - C can instruct
• either party can ask for clarification/questions of the expert

Question 12

Can a party withhold an unsatsifcactory medical report?

Answer 12

protocol does not require joint instruction/disclosure where name has not been disclosed
C needs permission as usual to rely on expert in proceedings
C would have to bear cost of undisclosed expert

Question 13

PI protocol - recommended time for D to respond

Answer 13

3 months

Question 14

do LIPs need to comply?

Answer 14

insofar as reasonably possible

Question 15

Letter of Response - D is required to respond within what time limit and ID who?

Answer 15

D to reply within 21 days of receipt of letter of claim and ID insurer
where failed - can commence proceedings

Question 16

medical reports - whiplash/non-whiplash

Answer 16

whiplash - fixed cost medical report from a listed practitioner
non-whiplash - parties work together to choose expert, if no agreement, can instruct one each but will need to justify this

Question 17

where an admission is made …..

Answer 17

C should file schedule of loss/damage and schedule of costs and allow D 21 days to consider whether settlement is possible
use of Pt. 36

Question 18

what constitutes failure of compliance?

Answer 18

• not providing sufficient info to enable objectives to be met
• not acting within time limits / reasonable period
• unreasonably refused to use a form of ADR/failed to respond to an invitation to do so.

Question 19

consequences of non-compliance?

Answer 19

court MAY order
- parties relieved of obligation to comply/further comply
- proceedings stayed while particular steps taken
- sanctions applied

Question 20

Justification for non-compliance

Answer 20

• limitation about to expire (issue proceedings then stay)
• need to take action urgently (pre-action requirements would defeat purpose)

Question 21

how to respond to non-compliance?

Answer 21

• keep evidence of it - but don’t be lured into it yourself