Pre-Action Conduct Flashcards
What is the purpose of the pre-action protocols
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.
Before commencing proceedings, what will the court expect parties to have exchange sufficient information for?
a) understand each other’s position
b) make decisions about how to proceed
c) try to settle the issues without proceedings
d) consider a form of ADR to assist with settlement
e) support the efficient management of those proceedings
f) reduce the costs of resolving the dispute
What does the pre-action protocols state about proportionality?
A pre-action protocol or PD must not be used by a party as a tactical device to secure an unfair advantage over another party. Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues.
The costs incurred in complying with a pre-action protocol or PD should be proportionate. Where parties incur disproportionate costs in complying with any pre-action protocol or PD, those costs will not be recoverable as part of the costs of the proceedings.
What steps should be taken before issuing a claim at court?
a) the claimant should wrtie to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated
b) the defendant responding within a reasonable time (14 days I a straightforward 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.
c) the parties disclosing key documents relevant to the issues in dispute
What is the position regarding expert evidence?
Parties should be aware that the court must give permission before expert evidence can be relied upon and that the court may limit the fees recoverable.
Many disputes can be resolved without expert advice or evidence. If it is necessary to obtain expert evidence, particularly in low value claims, the parties should consider using a single joint expert, jointly instructed by the parties, with the costs shared equally.
What does the pre-action protocol state about settlement and the use of ADR?
Litigation should be a last resort. The parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.
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.
What are the types of ADR stated in the pre-action protocol?
Mediation
Arbitration
Early Neutral Evaluation
Ombudsmen
What may the parties be required to provide to the court regarding ADR one proceedings are issued?
If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. 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 court costs.
What is meant by the parties carrying out a “stocktake” and a list of issues?
Where a dispute has not been resolved after the parties have followed pre-action protocol or PD, they should review their respective positions. 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 proveedings.
When may the court take into account compliance with pre-action protocols and PD?
When giving directions for the management of proceedings and when making orders for costs.
The court is not likely to be concerned with minor or technical infringements, especially when the matter is urgent (e.g. an application for an injunction).
When may the court decide that there has been a failure of compliance by a party?
When a party has -
a) not provided sufficient information to enable the objectives of the pre-action protocols
b) not acted within a time limit set out in a relevant protocol or within a reasonable period
c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.
What may the court order where there has been non-compliance with a pre-action protocol or PD?
a) the parties are relieved of the obligation to comply or further comply with the pre-action protocol or PD
b) the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or PD
c) sanctions are to be applied
What sanctions may the court impose on a party who did not comply?
a) order the party at fault to pay the costs of the proceedings, or part of the costs of the other party(s)
b) an order that the party at fault pay those costs on an indemnity basis
c) if the party at fault is a claimant who has 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
d) if the party at fault is a defendant, and the claimant 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 protocols state about limitation?
If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in the relevant pre-action protocol or PD, the parties should apply to the court for a stay of the proceedings while they so comply.
