Pre-action conduct

Question 1

Time limits for personal injury claims

Answer 1

Claimant must bring the claim 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

Question 2

Time limits for fatal accident

Answer 2

a) claim cannot be brought is the person injured could (if they were alive) no longer bring a claim - following personal injury rules

b) claim cannot be brought after 3 years from the later of:
i. date of death
ii. date of knowledge of dependent

Question 3

What is date of knowledge?

Answer 3

Means knowing:

a) injury was significant

b) injury was attributable (at lease in part) to the alleged wrong doing

c) the identify of the defendant

d) if it is alleged that the wrongdoing was by someone other than the defendant, the identity of that person and the additional facts supporting bringing the claim against the defendant

Question 4

Extensions of time (s33)

Answer 4

Court can extend time in relation to personal injury claims or under the fatal accidents act if that would be equitable, balancing the prejudice to the claimant cause by the limitation period with any prejudice to the defendant which allowing the claim would cause.

Court will look at:
- conduct of the parties
- reasons for the delay
- effect of such a late claim on the evidence

Question 5

Contribution (s10)

Answer 5

Sometimes, when a person is liable for damage, they can claim a contribution from another person

Question 6

Negligence claims (other than personal injury)

Answer 6

Limitation period is:

(a) six years from when the cause of action accrued; or

(b) three years from when he had the requisite

i. knowledge; and
ii. right to bring the claim

SUBJECT TO a long stop limitation date of 15 years from the date of the latest negligent act or omission.

Question 7

Enforcing a judgment

Answer 7

Action to enforce a judgment cannot be brought after 6 years.

Question 7

Tort and Contract breaches

Answer 7

For both:

limitation period expires six years after the date on which the cause of action accrued.

Contract = date of the breach

Tort = date of actionable damage

Question 8

Limitation under disability

Answer 8

Disability = minor or lacks mental capacity

limitation period starts to run from when the disability ends:

contribution: 2 years
PI/fatal accidents: 3 years
other cases: 6 years

Question 9

Fraud/concealment/mistake

Answer 9

Where a claim is based on:

(a) fraud or

(b) any fact relevant to the cause of action has been deliberately concealed by the defendant

(c) the action is for relief from the consequences of the mistake; then

limitation does not start to run until the claimant discovered the fraud, concealment or mistake (or discovered with reasonable diligence)

Question 10

Pre-action conduct

Answer 10

• litigation is a last resort
• pre-action conduct is a reasonable procedure suitable to their circumstances
• parties should act reasonably in exchanging documents and information and should try to avoid the necessity of court proceedings

Question 11

aims of the protocol

Answer 11

• ‘cards on the table’ approach to resolving the dispute
• emphasis is on the parties resolving the dispute without involving the court
• pre-action protocols are designed to achieve this by enabling parties to obtain information they reasonably need to settle the matter at the earliest possible opportunity
• and to lay the foundations for court proceedings (eg parties may be able to limit the issues in the dispute at a very early stage)
• should also consider the benefits of ADR to avoid court proceedings

Question 12

Costs of non-compliance with pre-action protocol

Answer 12

Adverse consequences:

• costs
• interest

Court may also stay the proceedings until the relevant steps are taken.

Question 13

Is non-compliance ever justified?

Answer 13

Occassionaly but rarely:

• limitation period is about to expire: may be necessary to issue court proceedings before there is time to comply with pre-action. Ordinarily will apply for a stay of proceedings after
• Where there is another reason for urgency or the element of surprise (e.g. search order)

Question 14

Practice direction

Answer 14

Letter before claim!

Should send letter detailing the claim before issuing a claim.

Within a reasonable period (will depend on the claim) the defendant should send a response letter:
- accepting claim
- rejecting claim (in whole or part)

Parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement