Pre- Action Conduct Flashcards
true or false:
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 and are approved by the master of the rolls.
true
When does the practice direction for pre-action apply?
to disputes where no pre-action protocol approved by the master of the rolls applies.
true or false:
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
true.
before commencing proceedings, the court will expect the parties to have exchanged sufficient information to do what?
to understand each other’s position
make decisions about how to proceed
try and settle the issues without proceedings.
consider a form of ADR to assist with settlement
support the efficient management of those proceedings and
reduce the costs of resolving the dispute.
when must a pre-action protocol or PD not be used by a party and what should be done instead
it shouldn’t be used as a tactical device to secure an unfair advantage over the party and only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues.
true or false:
the costs incurred in complying with a pre-action protocol or this PD should be not be proportionate. Where parties incur disproportionate costs in complying with any pre-action protocol or this PD, those costs will be recoverable as part of the costs of the proceedings.
false:
it should be proportionate and when incurred disproportionate costs, those costs will not be recoverable as part of the costs of the proceedings.
true or false:
where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings.
true
where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in para 3 bearing in mind that compliance should be proportionate. but what will these steps usually include?
A. the claimant should write the concise details of claim to D. Letter should include basis on which claim is made, a summary of facts, what the claimant wants from the defendant and if it involves money, how much 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.
true or false:
Parties should be aware that the court must give permission before expert evidence can be relied upon and that the court may not limit the fees recoverable.
false:
the court may limit the fees recoverable but should be aware that the court must give permission before expert evidence can be relied upon.
if it is necessary to obtain expert evidence, particularly in low value claims, what should the parties consider?
they should consider using a single joint expert who is jointly instructed by the parties with the costs shared equally.
what should the parties do where a dispute has not been resolved after the parties have followed a pre-action protocol or this PD?
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.
true or false:
this PD or pre-action protocols don’t alter the stat time limits for starting court proceedings in relation to limitation
true.
true or false:
if a claim is issued after the relevant limitation period has expired, the defendant will be entitled to se that as a defence to the claim?
true.
what should the parties do if proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this PD or the relevant pre-action protocol?
the parties should apply to the court for a stay of the proceedings whilst they so comply.
true or false:
the period for the defendant to investigate and respond can be varied by the parties by consent?
true
when might the full protocol period might not be necessary?
in simple cases where D is already aware of and has taken some action
when might a longer protocol period might be necessary?
in complex cases or where origin of dispute occurred some time previously or where D had no prior knowledge of potential claim.
true or false:
the level of detail in a letter of claim will depend on type and value of the case but should always include the main facts and circumstances, the nature of the dispute or claim and the remedy sought.
true.
if the claimant doesn’t write to D until towards the end of a relevant limitation period, what should the claimant do?
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 or should serve the claim and invite the court to order a stay under r26.5
what is the consequence of D failing to make his response letter detailed and not simply deny the claim?
it could be a breach of a protocol meriting a sanction.
true or false:
if D is prepared to admit liability, the letter should say so clearly and not positively admitting liability but encouraging negotiations to lead to a settlement is also not within the spirit of the reforms.
true.
As to Q21, what does this leave the claimant in and why?
leaves them in a dilemma as to whether it is necessary to assemble the evidence to establish liability as in doing so will increase costs.
under which rule does the court get power to allow a party to withdraw an admission but the burden rests upon the party applying?
CPR 14.1
if liability is denied, what should the defendant do?
they must give proper reasons and should attach any relevant documents on which they rely if these haven’t been disclosed.
true or false:
the letter of claim and response are not intended to have the same status as a statement of case as it would defeat the purpose if a party were penalised for subsequently clarifying his/her claim or defence when proceedings were issued.
true
What action can amount to ‘unreasonable conduct’?
when parties do not explain the reasoning behind substantial changes without good reason.
true or false:
despite the protocols differing on steps with regard to expert evidence, 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
true
what do all the pre-action protocols strongly encourage?
early settlement discussions and the use of an ADR approach.
true or false:
the courts are sympathetic to parties who are unwilling at least to try to narrow the issues or to hold settlement discussions pre-issue.
false:
the courts are not sympathetic to parties who are unwilling
true or false:
pre-action part 36 offers to settle may have the same costs consequences as post-commencement offers, provided that the offeror has provided the offeree with sufficient information to enable her to understand and evaluate the offer.
true
true or false:
the protocols don’t specify as to 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.
true.
when will the courts make costs awards in small claims cases?
for unreasonable conduct.
true or false:
while parties can apply for pre-action disclosure under r31.16, they cannot apply to the court pre-issue for rulings on other matters.
true
What happened in the case of Ecclesiastical Insurance Office Plc v Trustees of the Carmelite Charitable Trust?
the court was prepared to hear an application from an insurer for a declaration of non-liability in a situation where the action was only likely to proceed where the defendant was insured.
in which cases does the personal injury protocol apply to?
PI claims which are likely to be allocated to fast track and to entirety of those claims; not only to the PI element of a claim which also includes, for instance property damage.
true or false:
if at any stage C values the claim at more than the upper limit of the fast track, C should notify D as soon as possible
true
true or false:
the cards on the table approach advocated by this protocol is equally appropriate to higher value claims
true
true or false:
spirit, if not the letter of the protocol, should still be followed for claims which could potentially be allocated to the intermediate or multi-track
true
true or false:
the protocol sets out conduct that the court would normally expect prospective parties to follow prior to the commencement of proceedings
true
where either party fails to comply with the pre-action protocol, what may the court do?
impose sanctions
when deciding to impose sanctions, what must the court do?
look at whether parties have complied in substance with the relevant principles and requirements and must also consider the effect of any- non compliance has had on another party.
what time length does the protocol recommend for D to be given in order to investigate and respond to a claim before proceedings are issued?
3 months
if D is unable to be given 3 months to investigate and respond, especially where C only consults a legal representative close to the end of any relevant limitation, what must happen?
C’s solicitor should give as much notice of the intention to issue proceedings as is practicable and the parties should consider whether court might be invited to extend time for service of C’s supporting documents and for service of any defence or alternatively to stay proceedings while recommended steps in the protocol are followed.
true or false:
if a party to the claim doesn’t have a legal representative, they should still as reasonably possible fully comply with this protocol
true
what is the general aim of the pre action protocol?
Encourage the exchange of early and full information about the dispute
Encourage better and earlier pre-action investigation by all parties
Enable the parties to avoid litigation by agreeing a settlement of the dispute before proceedings are commenced
Support the just, proportionate and efficient management of the proceedings where litigation can’t be avoided
Promote the provision of medical or rehabilitation treatment (not just in high value cases) to address the needs of C at the earliest possible opportunity.
true or false:
C or legal representative may wish to notify D and/or the insurer as soon as they know a claim is likely to be made but before they are able to send a detailed letter of claim, particularly for when D has no or limited knowledge of the incident giving rise to the claim or where C is incurring significant expenditure as a result of the accident which he hopes D might pay for in whole or in part
true
what should the letter of notification advise D and/or insurer about
it should advise of any relevant info that’s available to assist with determining issues of liability/ suitability of claim for an interim payment and/or early rehabilitation.
true or false:
the letter of notification should be acknowledged within 14 days of receipt
true
what will happen if C or legal rep gives notification before sending a letter of claim?
it won’t start the timetable for Letter of response.
how many letters of claim should C send and to who?
2 copies
1 to D
2nd for passing on to the insurers ASAP
how many days does D have to send the 2nd copy of the letter of claim?
7 days
true or false:
in a letter of claim, there should be sufficient info for D to assess liability and to enable D to estimate the likely size and heads of claim without necessarily addressing quantum in detail
true
what should the letter of claim should contain?
a clear summary of facts on which claim is based together with an indication of nature of any injuries suffered and way in which these injuries have impacted of C’s day to day functioning and prognosis.
what must be supplied to D’s insurer once D has responded to letter of claim and confirmed the identity of the insurer
details of C’s national insurance number and date of birth
true or false:
Where a claim no longer continues under either low value protocol, the CNF completed by C under those protocols can be used as the Letter of Claim under this Protocol unless D has notified C that there is inadequate information in the CNF.
true
true or false:
once C has sent the letter of claim, no further investigation on liability should normally be carried out within protocol period until a response is received from D indicating whether liability is dispute
true
true or false:
letters of claim and response aren’t intended to have the same formal status as a statement of case in proceedings as it would not be consistent with the spirit of the protocol for a party to ‘take a point’ on this in the proceedings, provided that there was no obvious intention by the party who changed their position to mislead the other party.
true
when must the defendant reply with a letter of response
21 calendar days of the date of posting of the letter identifying the insurer
true or false:
if the insurer is aware of any significant omissions from the letter of claim, they should identify them specifically
true
if another defendant has been identified whom they believe would not be a correct defendant in any proceedings, what must the insurer do?
they should notify C without delay with reasons and in any even by the end of the response period
where there’s been no reply by D or insurer within 21 days, what is C entitled to?
entitled to issue proceedings
true or false, compliance with paragraph 6 will be taken into account on the question of any assessment of D’s costs
true
how many months does D’s insurer have to investigate?
max of 3 months from date of acknowledgment of letter of claim
what should D’s insurer do after the end of the max 3 months to investigate
they should reply by no later than the end of that period stating if liability is admitted by admitting that the accident occurred and that the accident was caused by D’s breach of duty and C suffered loss and there is no defence under LA 1980
true or false:
Where the accident occurred outside England and Wales and/or where the defendant is outside the jurisdiction, the time periods of 21 days and three months should normally be extended up to 42 days and six months.
true
what should D do if they deny liability and/or causation
their version of events should be supplied
true or false:
D should also enclose with the response, documents in their possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings
true
true or false:
an admission made by any party under this protocol shall be binding on that party in the litigation
false:
it may well be binding on that party in the litigation.
following receipt of the letter of response and C is aware that there may be a delay of 6 months or more before C decides if when and how to proceed, what should C do
keep D generally informed
what is the aim of early disclosure?
not to encourage fishing expeditions by C but to promote an early exchange of relevant info to help in clarifying or resolving issues in dispute.
true or false:
C’s solicitor can assist by identifying in the Letter of Claim or in a subsequent letter the particular categories of documents which they consider are relevant and why, with a brief explanation of their purported relevance if necessary.
true
what will pre-action disclosure be limited to?
documents required to be enclosed with the letter of claim and the response
in cases where liability is admitted in full, what will disclosure be limited to?
documents relevant to quantum, the parties can agree that further disclosure may be given
true or false:
If either or both of the parties consider that further disclosure should be given but there is disagreement about some aspect of that process, they may be able to make an application to the court for pre-action disclosure under Part 31 of the CPR.
true
what must parties do in order to avoid the necessity for an application
assist each other
true or false:
the protocol should also contain a requirement that D is under a duty to preserve disclosure documents and other evidence
true
if documents are destroyed, what could this amount to?
an abuse of the court process
in relation to claims which don’t consist of or include a claim for whiplash, what does the protocol encourage for parties to do?
joint selection of and access to quantum experts and on occasion liability experts.
it also promotes the practice of C obtaining a medical report disclosing it to D who then asks questions and/or agrees it and doesn’t obtain their own report.
true or false:
protocol provides for nomination of the expert by C in personal injury claims
true
before any party instructs an expert, what must they do
they should give the other party a list of the name(s) of one or more experts in the relevant speciality whom they consider are suitable to instruct.
true or false:
Some solicitors choose to obtain medical reports through medical agencies, rather than directly from a specific doctor or hospital.
true
true or false:
D’s prior consent to this should be sought and, if the defendant so requests, the agency should be asked to provide in advance the names of the doctor(s) whom they are considering instructing.
true
true or false:
Save for reports in support of a claim for whiplash injury (whether or not it is part of a claim for other injuries) to which paragraph 7.12 applies, where a medical expert is to be instructed, C’s solicitor will organise access to relevant medical records
true
within 14 days of providing a list of experts, what must the other party do?
they may indicate an objection to one or more of the named experts
what should the first party do after the other party indicate an objection to one or more of the named expert
they should then instruct a mutually acceptable expert assuming there is one.
true or false:
when C nominates an expert in the original Letter of Claim, D has a further 14 days to object to one or more of the named experts after expiration of the 21 day period within which they have to reply to the Letter of Claim
true
if the defendant objects to all the listed expert
the parties may then instruct experts of their own choice
true or false:
it will be for the court to decide subsequently and if proceedings are issued, whether either party had acted unreasonably
true
name the three exceptions in which allows D to be entitled to rely on their own expert evidence within that expert’s area of expertise if they don’t object to an expert nominated by C
if C agrees,
the court so directs or C’s expert report has been amended and C isn’t prepared to disclose the original report.
true or false:
any party may send to an agreed expert written questions on the report via the first party’s solicitors
true
true or false:
Such questions must be put within 28 days of service of the expert’s report and must only be for the purpose of clarification of the report
true
what should the expert do with the questions
they should send answers to them simultaneously to each party
the costs of a report from an agreed expert will usually be paid by which party?
the instructing first party
true or false:
the costs of the expert replying to questions will usually be borne by the party which asks the questions.
true
true or false:
Where D admits liability which has caused some damage, before proceedings are issued, C should send to that D—
(a)any medical reports obtained under this Protocol on which the claimant relies; and
(b)a schedule of any past and future expenses and losses which are claimed, even if the schedule is necessarily provisional. The schedule should contain as much detail as reasonably practicable and should identify those losses that are ongoing. If the schedule is likely to be updated before the case is concluded, it should say so.
true
how many days should C delay issuing proceedings from disclosure of the elements in flashcard 95 in order to enable the parties to consider whether the claim is capable of settlement
21 days
true or false:
part 36 permits C and C to make offers to settle pre-proceedings
true
true or false:
parties should always consider if it’s appropriate to make a part 36 offer before issuing?
true
if a part 36 offer is made, what must the party making the offer do in order to enable the offer to be properly considered
must always try to supply sufficient evidence and/or info to enable the offer to be properly considered
true or false:
the level of detail won’t depend on the claim value
false, it will depend on the claim value
true or false:
except for whiplash claims, med reports may be necessary where there is no significant continuing injury and a detailed schedule may be necessary in a low value case.
false:
Except for any claim for a whiplash injury, medical reports may not be necessary where there’s no significant continuing injury and a detailed schedule may not be necessary in a low value case.
when should litigation be used?
as a last resort
true or false:
Parties should consider whether negotiations or some other form of ADR might enable them to resolve their dispute without commencing proceedings.
true
what are some of the options that can resolve disputes without commencing proceedings?
discussions/ negotiations
mediation
arbitration
early neutral evaluation
when proceedings are issued, what may the parties be required to show to the court
evidence that ADR has been considered.
true or false:
no party can or should be forced to mediate or enter into any form of ADR but unreasonable refusal to consider ADR will be taken into account by the court when deciding who bears the costs of the proceedings
true
true or false:
In all cases, if D admits liability, C will send to D as soon as reasonably practicable, a schedule of any past and future expenses and losses which he claims, even if the schedule is necessarily provisional
true
what should the schedule of past and future expenses contain?
as much detail as reasonably practicable and should identify those losses that are ongoing.
true or false:
if schedule is likely to be updated before the case is concluded, it should say so
true
what should C do in relation to the rate at which financial loss is progressing throughout the entire protocol period
C should keep D informed
what should the parties do where the procedure set out in the protocol hasn’t resolved the dispute between the parties
they should undertake a review of its own positions and the strengths and weaknesses of its case
true or false:
The parties should then together consider the evidence and the arguments in order to see whether litigation can be avoided or, if that is not possible, for the issues between the parties to be narrowed before proceedings are issued
true
where D is insured and the pre-action steps have been taken by the insurer, what is the insurer normally be expected to do?
nominate solicitors to act in the proceedings and to accept service of the claim form and other documents on behalf of D
what is C or their solicitor recommended to do and how many days should this be before the intended issue date
invite insurer to nominate insurer to nominate solicitors to act in proceedings and do so in 7-14 before intended issue date.
what track does the C2-001.1 protocol apply to?
fast track cases with a value of up to £25,000
true or false:
General approach should still be followed in larger claims except occupational disease (which has its own protocol) and clinical negligence
true
what does the protocol specifically requires the parties to do on the selection of an expert, especially in relation to a medical expert providing a condition and prognosis report on the accident victim
co-operate
true or false:
If D objects to all of the experts named by C or isn’t satisfied with the report disclosed by C after raising questions, they may decide to retain their own expert
true
true or false:
It will be for the court to decide at allocation stage whether the costs of 2 experts is justified.
true
true or false:
Protocol includes a specimen letter of instruction to a medical expert and non-exhaustive detailed lists of documents which D’s should disclose with any denial of liability in particular types of case.
true
true or false:
When a claim drops out of the new protocol e.g. because the defendant does not admit liability at all or outside the 15-day period the claim then proceeds under the personal injury protocol, and under Pt 7 if proceedings need to be issued
true
does the protocol state what should happen if the claimant obtains a report which C doesn’t wish to disclose because it’s unsatisfactory or unhelpful
no
true or false:
Carlson v Townsend [2001] EWCA Civ 511 the Court of Appeal confirmed that the personal injury protocol does not require a medical expert, selected in accordance with the protocol, to be jointly instructed, or the report to be disclosed to the defendant, where the expert’s identity has not been revealed.
true
true or false:
reports remain privileged and the court cannot order their production
true
true or false:
claimant would need the court’s permission as usual to rely upon an expert’s report in the proceedings (and generally the claimant would have to bear the cost of the undisclosed report).
true
true or false:
if the dispute proceeds to litigation, the court will expect the parties to have complied with a relevant pre-action protocol or this PD
TRUE
true or false:
The court will take into account non-compliance when giving directions for the management of proceedings (see CPR 3.1(4) to (6)) and when making orders for costs (see CPR 44.3(5)(a)).
true
what will the court consider?
whether all parties have complied in substance with the terms of the relevant pre-action protocol or this Practice Direction and is not likely to be concerned with minor or technical infringements, especially when the matter is urgent (for example an application for an injunction).
when may the court decide that there’s been a failure of compliance?
when a party hasn’t provided sufficient info to enable the objectives in para 3 to be met
when they haven’t acted within a time limit set out in a relevant protocol or within a reasonable period or
unreasonably refused to use a form of ADR or failed to respond at all to an invitation to do so.
where there has been non compliance with a pre-action protocol or PD, what may the court order?
(a)the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction;
(b)the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction;
(c)sanctions are to be applied.
what may be included when the court considers the effect of any non-compliance when deciding whether to impose any sanctions?
A) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties
B) an order that the party at fault pay those costs on an indemnity basis
C) if the party at fault is C who’s been awarded a sum of money, order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded.
D) if the party at fault == D and C has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate, (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.
what does the pre-action protocol for PI claims set out
conduct that the court would normally expect prospective parties to follow prior to the commencement of proceedings.
It establishes a reasonable process and timetable for the exchange of information relevant to a dispute, sets standards for the content and quality of letters of claim and in particular, the conduct of pre-action negotiations.
true or false:
The timetable and the arrangements for disclosing documents and obtaining expert evidence may need to be varied to suit the circumstances of the case.
true
true or false:
Where one or both parties consider the detail of the protocol isn’t appropriate to the case and proceedings are subsequently issued, the court will expect an explanation as to why the protocol hasn’t been followed or has been varied.
true
when may a court impose sanctions in relation to PI claims?
where either party fails to comply with this protocol
when deciding to impose sanctions, what must the court look at
whether parties have complied in substance with the relevant principles and requirements and the effect any non compliance has had on another party
true or false:
The CPR enables the court to take into account compliance (or non-compliance) with the Practice Direction and applicable protocols when giving directions for the management of proceedings and when making orders as to costs.
true
how should the court treat the protocols?
as the reasonable approach to pre-action conduct for that type of dispute and are able to impose sanction for breaches
what does CPR 3.1 provide in terms of sanctions
(4) Where the court gives directions it will take into account whether or not a party has complied with the Practice Direction (Pre-Action Conduct) and any relevant pre-action protocol;
(5)The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or relevant pre-action protocol.”
what does 44.2(5) enable the court to do
to take into account when making orders as to costs, the conduct of the parties before as well as during, proceedings and ‘’in particular the extent to which the parties followed the PD (Pre-action Conduct) or any relevant pre-action protocol”
true or false:
PD states that the court expects compliance with the substance, if not the letter, of the PD and the protocols:
This could mean the court ordering:
the party at fault to pay all or part of the costs of the proceedings to date;
the party at fault to pay costs on an indemnity basis;
if the party at fault is C, the court might deprive him/her of some of the interest on damages or apply a reduced rate of interest.
true
name the other types of reaction , the court may have to non-compliance:
where a C has issued prematurely, giving D an extension of time to serve the defence; or
where D hadn’t replied adequately or in time to the letter of claim, but did have a good defence, and the claimant wants to discontinue proceedings when the defence is served, ordering D to pay some or all of C’s costs.
true or false:
Parties are asked to state whether they have complied with any relevant protocol in their Directions Questionnaire but not whether the other party has not complied and whether the court is being invited to apply a sanction
true
true or false:
In Wealands v Harding [2003] EWHC 889 (QB) : C’s failure to comply with the personal injury protocol in not allowing an Australian defendant six months to investigate, and issuing within a very short time of the letter stating the intention to sue in the English courts was a more serious fault than the four weeks delay after issue by the defendant in challenging jurisdiction under Pt 11.
true
what happened in
Spink v Shepherd Construction Ltd [2007] 10 WLUK 243, 10 October 2007, unrep.
2nd D failed to comply with the protocol for disease and illness at work claims by not replying at all to several letters concerning the claimant’s contraction of mesothelioma from exposure to asbestos allegedly when employed by the second defendant.
C issued proceedings and obtained judgment in default against the second defendant.
C then died.
On 2nd D’s application to set aside the judgment, on the basis that the claimant had not worked with asbestos in his employment with them, the Master decided that the delay in producing a potential defence had so greatly prejudiced C he should refuse to set aside the judgment (he was also not satisfied that the 2nd D had a real prospect of succeeding with their defence).
what happened in Daejan Investments Ltd v Park West Club Ltd [2003] EWHC 2872 (TCC)
a dispute about allegedly defective waterproofing, C issued proceedings without properly investigating the situation or taking advice from a waterproofing expert.
The nature of their claim changed several times.
When applying to significantly amend their statement of case they were ordered to pay all the costs of the Pt 20 party to date for non-compliance with the protocol.
what happened in o Cundall Johnson and Partners v Whipps Cross University Hospital NHS Trust [2007] EWHC 2178 (TCC):
the court ordered a stay of the proceedings where C had failed to comply with the Protocol for Construction and Engineering claims by not sending a letter of claim so that the contractual basis of the claim remained obscure until proceedings were issued.
The stay was in the interest of both parties as there was a real possibility of settlement if they went through the protocol process
what happened in o Orange PCS v Hoare Lea [2008] EWHC 223 (TCC):
the court declined to order a stay for compliance with the Protocol for Construction and Engineering claims when a new potential defendant was identified shortly before limitation expired in a case involving three other defendants in which proceedings were well-advanced.
C issued separate proceedings against the new party and applied for the cases to be consolidated.
The new D applied for a stay because the claimant had not complied with the protocol.
The court concluded that it was necessary to look at non-compliance with the protocol in a pragmatic and commercially realistic way and the court should avoid the slavish application of rules and protocols if such application would undermine the overriding objective.
At this stage of the two sets of proceedings the protocol process would not be sufficiently productive to justify a stay when the new party was in possession of the statements of case in the first claim, and C’s particulars of claim in the second claim and when the new party could join in the ADR planned for a few months’ time.
what happened in TJ Brent Ltd v Black and Veatch Consulting Ltd [2008] EWHC 1497 TCC :
C’s application for costs because of the defendant’s alleged non-compliance with the Pre-action Protocol for Construction and Engineering Dispute was dismissed as the defendant had largely complied
what happened in o Nelson’s Yard Management Co v Eziefula [2013[ EWCA Civ 235:
C wasn’t ordered to pay the defendant’s costs under r.38.6(1) when the claim was discontinued, because of D’s unreasonable conduct pre-action, particularly in failing to respond to several letters from the claimant who was objecting to D’s excavations very close to the retaining wall and foundations of the claimant’s properties
what happened in Williams v Secretary of State for Business, Energy and Industrial Strategy [2018] EWCA Civ 852:
the Court of Appeal confirmed, in cases where settlement was reached prior to issue of proceedings, that an unreasonable failure to comply with a protocol, would usually result in fixed costs only being awarded, where fixed costs would have applied had the protocol been used.
what happened in Naylor v Galliard Homes Ltd [2019] EWHC 2392 (TCC)
the failure by D’s adequately to give disclosure under the relevant pre-action protocol meant that the court decided that the overriding objective required the time for the service of particulars of claim to be extended notwithstanding that there were limitation issues.
what happened in o Gunn & Lloyd Wilson v Taygroup Ltd [2010] EWHC 1665 (TCC)
was a claim initially for damages of £637,000 arising from D’s lorry bringing down telephone and data cables. Pre-action D’s solicitor admitted liability, but after their loss adjuster had refused to do so.
On issue the claim increased to £3.4 million, and D’s new solicitor withdrew the admission.
C’s application to strike out part of the defence was refused because there was no assertion of bad faith by D, or prejudice to C, and if D had known pre-action that they faced a claim of over £3 million they may not have admitted liability so readily if there was an arguable defence on the facts.
what did Master steven say about the purpose of the pre-action protocols in the case of Shah v Barnet LBC [2021] EWHC 2631 (QB),
to narrow issues and resolve disputes, or parts of them, wherever possible without having to engage expensive court resource. If issues are to be re-opened at a later stage there need to be very good reasons as the overriding objective makes clear”
what is the most significant risk of an insufficient response if proceedings are issued
a sanction may be imposed or an adverse order as to costs made.
what may the courts ask the parties to do
explain what steps were taken to comply with the PD Pre-action Conduct and Protocols and may ask a party to explain any failure to comply requiring evidence.
true or false:
There are some circumstances in which non-compliance with pre-action requirements may be justified, though a court may be slow to accept non-compliance that’s not clearly justified especially if it frustrates settlement or increases costs unnecessarily
true
if the relevant limitation period is about to expire, what may it be necessary to do
issue proceedings to ensure that they are issued in time
true or false:
if stated in flashcard 158 that it may be necessary to issue proceedings to ensure that they are issued in time, what must be satisfied?
Pre-action requirements should be satisfied so far as is reasonably possible in the time available
true or false:
If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in the PD or a relevant pre-action protocol, the parties should apply to the court for a stay of proceedings while they comply- para 17 Practice Direction- Pre-action conduct and protocols
true
true or false:
A need to take action urgently may justify a failure to comply with pre-action requirements where, for example, telling another potential party in advance would defeat the purpose of an application as would be likely to be the case in an application for a freezing injunction.
However even in a case of urgency, the parties should still comply with the pre-action process to the extent it is reasonable to do so.
true
true or false:
Non-compliance by another party won’t in itself provide and excuse for failing to comply with pre-action requirements
true
what is the appropriate course of action in relation to non compliance by another party
to raise the non-compliance specifically so it can be addressed if possible and keep evidence of the non-compliance by the other side rather than being lured into mirroring non-compliance.
true or false:
Court can take into account the extent of parties’ compliance with the Pre-action protocols and Practice direction Pre-action conduct and protocols when making case management and costs orders.
true
what can non-compliance include?
an unreasonable refusal to use a form of ADR or failing to respond at all to an invitation to do so
true or false:
A party’s silence in response to an invitation to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.
true
what sanctions can the courts impose for non-compliance with the protocols
Staying the proceedings
Ordering that the party at fault pays the costs or part of the costs of one or more of the other parties.an order that the party at fault pays those costs on an indemnity basis
If the party at fault is C who’s been awarded a sum of money, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded.
If the party at fault is D and C has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate (not exceeding 10% above the base rate) than the rate which would otherwise have been awarded.
true or false:
Adverse costs orders have been made in a number of cases for failing to follow reasonable pre-action conduct in accordance with the provisions and spirit of the protocols and practice direction pre-action conduct and protocols but courts have refused to strike out a claim for non-compliance with the relevant provisions of the PD pre-action conduct then in force
true
what was said in Cable v Liverpool victoria insurance co Ltd
The court expected parties to comply with Pre-action Protocols and practice directions and that a failure to comply with them could amount to a contempt of court or an abuse of process.
If the court found that C’s conduct was an abuse of process, the court should conduct a balancing exercise to determine whether it was appropriate to strike out the claim.
true or false:
non compliance may result in an indemnity costs order
true
true or false:
a party who served a dishonest witness statement in purported compliance with a pre-action protocol could be said to be interfering with due administration of justice so as to engage the court’s jurisdictions to commit for a contempt of court
true
true or false:
the court may also penalize a party for failing to consider ADR pre-issue
true
true or false:
PD Pre-action Conduct and Protocols and the Pre-action protocols also provide that a party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional costs
true
true or false:
Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started.
Part 36 offers may be made before proceedings are issued.
true
true or false:
Party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.
true
what does having an increased focus on ADR allow the parties to do
enable the parties to understand each other’s position and to settle the issue between them without the need to start proceedings
what should there be before proceedings are issued and why
a final review to see if proceedings can be avoided or issues narrowed
true or false:
the parties should continue to consider the possibility of reaching a settlement at all times including after proceedings have been started
true
