Pre-Action Conduct Flashcards
How does the court interpret and deal with a failure to engage with pre-action protocols?
Court looks for substantive compliance - do not have to be followed slavishly
Will be taken into account for case management and costs purposes
What will the court expect (broadly) for both sides to have done before litigation?
Understand each others positions
consider ADR
Support the efficient management of proceedings
Reduce costs
Try to settle without litigation
Can experts be engaged pre-action?
Yes, but expert evidence is only admissible with the court’s permission.
Court will look for the use of experts to be reasonable
If there is no dedicated pre-action protocol, what should the parties do?
Exchange letters making clear the claim, the facts, the grounds and what is sought
The response to a letter before claim should be sent within 14 days
If its a complex case this can be extended to 3 months
The response should make clear if claim is accepted, and on what grounds it is rejected. It should make clear what is in dispute.
Important documents should be exchanged
What is the concept of proportionality as it applies pre-action?
Costs incurred should be proportionate (if not, they aren’t recoverable)
Can’t use pre-action protocol to get an advantage
Do pre-action protocols affect limitation?
No
If limitation is about to expire, the claim should be issued and the parties should apply for a stay to comply with pre-action
When does the pre-action protocol for personal injury apply?
Designed for claims which include some PI, but are likely to be allocated to the fast track (up to £25,000)
What is the recommended length of time D should be given to investigate and respond to a claim under the PI pre-action protocols?
3 months
or as long as possible if not practicable
Does the PI pre-action protocol apply to litigants in person?
Yes
When should a letter of notification be sent under PI pre-action, and what should it include?
When a letter of claim cannot be drafted fully. On the principle that it is best to notify as soon as possible.
should include information for D to consider liability and whether an interim payment is needed
It should be acknowledged in 14 days
What is the process for the letter of claim under PI pre-action?
Sent in duplicate - one for D to pass on to insurers within 7 days
Should detail the facts relied upon, including details of the injury & financial loss
Does not need to address quantum specifically, but does need to give sufficient information for heads of loss to be understood and estimated
Should not include NI number and Date of Birth - this should be sent separately once acknowledged by D
When should D acknowledge the letter of claim under PI pre-action?
Within 21 Calendar Days of the date of posting identifying the insurer (if there is one).
When should D or their insurer give a full response to the letter of claim?
Within 3 months.
It should state whether liability is admitted, or if denied, should set out their version of events. The response should include any document which is material to the proceedings and is likely to be ordered to be disclosed under proceedings.
What are the time limits for acknowledgement and response under PI pre-action if the defendant is abroad/event occurred outside the E&W?
42 days for acknowledgement
6 months for response
If liability is admitted pre-action, what is the process to follow?
Medical reports
Schedule of loss
Then a 21 day delay before issuing proceedings to allow for settlement discussions
What is the process for instructing an expert in a non-whiplash injury under PI Pre-action?
Should be mutually agreed. Normally, C presents D with list of experts.
D has 14 days to object to any.
Once report is produced, D can ask questions of the author. Must be for clarification and should be issued within 28 days of service of report.
If not agreed, can both instruct their own. Court will decide who to use, and will take into account whether the parties acted reasonably
What is the approach of the pre-action protocols when it comes to expert evidence (non-PI)?
Should be jointly instructed and costs shared as far as possible.
Cannot be relied upon without permission of the court.
