Pre Action Conduct

Answer 1

paragraphs 8.23-8.25, 11.05-11.06 and
11.60 of The Jackson ADR Handbook (Third Edition, 2021)

Question 2

What are the objectives of pre-action protocol and conduct?

Answer 2

PD Pre-action conduct (3)

• Understand each others position
• Decide how to proceed
• Settle without proceedings
• Consider ADR
• Efficient management of proceedings
• Reduce costs

Question 3

What is the rule on pre-action conduct and proportionality?

Answer 3

PD(4) Reasonable and proportionate steps should be taken.

CPR 44.3(5) if parties incur disproportionate costs in complying with pre-action protocol, they will not be recoverable.

Question 4

What steps should parties take before issuing a claim at court?

Answer 4

PD (6) Parties should exchange correspondence, including the basis on which the claim is made and whether it is accepted.

Question 5

What is the course if a dispute has not been resolved after following pre-action protocol?

Answer 5

PD (12) Review their position, consider if proceedings can be avoided or narrowed.

Question 6

What cases does the Pre action PD (PI) apply to?

Answer 6

primarily designed for personal injury claims which are likely to be allocated to the fast track and to the entirety of those claims: not only

Question 7

Do pre action protocols apply to litigants in person?

Answer 7

Yes- PD (PI)1.7 so far as is reasonable must still comply

Question 8

When should a letter of notification be sent?

Answer 8

PD PI 3.1, may wish to notify the defendant or insurer that they know a claim is likely to be made but not able to give detail.

Question 9

What should a letter of notification contain?

Answer 9

PD(PI) 3.2 Advise the reciever of any relevant information available to assist.

Question 10

Does a receiver have to respond to a letter of notification?

Answer 10

PD(PI) No, does not start a timetable for letter of response but should be acknowledged within 14 days.

Question 10

How many copies of a letter of claim should be sent to the defendant?

Answer 10

PD (PI) 2 copies, one for defendant one for insurer

Question 11

Upon receiving a letter of claim, how long does a defendant have to pass a letter of claim to their insurers?

Answer 11

PD (PI) should be passed ASAP and in any event within 7 days

Question 12

What should a letter of claim contain?

Answer 12

PD (PI)
- Summary of facts which claim is based
- Indication of nature of injuries
- Financial loss

Question 13

What is the status of letters of claim and response?

Answer 13

PD(PI) 5.7 Not the same as statements of case.

Question 14

After receiving a letter of claim, how long does a defendant have to respond?

Answer 14

PD (PI) 6.2 21 days. If no response in that time then claimant entitled to issue proceedings

42 days if the accident occured outside England and Wales.

Question 15

How long does the defendant (or insurer) have to investigate a PI claim?

Answer 15

3 months from the acknowledgement of the letter of claim.
6 months if the accident occured outside England and Wales.

Question 16

When may a court decide when there has been a failure of compliance with pre-action protocol?

Answer 16

when a party has:
not provided sufficient information to enable the objectives above to be met (understand each others position etc)

not acted within a time limit set out in a relevant protocol, or within a reasonable period

unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.

Question 17

Where there has been non compliance with a pre-action protocol, what may the court order?

Answer 17

1. The parties are relieved of obligations to further comply with pre-action protocol.
2. The proceedings are stayed whilst particular steps are taken to comply with pre-action protocol.
3. Sanctions are to be applied.

Question 18

The court will consider the effect of any non-compliance when deciding whether to impose sanctions. What may these sanctions include?

Answer 18

An order that the party at fault pays the costs of the proceedings, or part of the costs of the other party.

An order that the party at fault pays the above costs on an indemnity basis.

An order depriving a party of interest, or awarding interest at a higher or lower rate than would have otherwise been awarded (not exceeding 10% above what would have been awarded)