Pre-Action Conduct and Commencing a Claim Flashcards
What are the main purposes of Pre-Action Conduct?
To outline the processes and procedures that must be followed before bringing a claim in civil courts, including following pre-action protocols and practice directions.
What is the role of Pre-Action Protocol and Practice Direction?
They set out the procedures the court expects parties to follow before issuing proceedings, with different protocols depending on the type of dispute.
What are the consequences of non-compliance with the Pre-Action Protocols?
The court may impose adverse consequences such as making an adverse order for costs or directions against the non-complying party, staying proceedings to allow steps / ADR to be carried out, or imposing sanctions, unless the non-compliance is minor.
Justified non-compliance includes situations where the limitation period is about to expire (so the claim form is filed immediately without following the protocol) or there is an urgent need to search the defendant’s premises.
What is the overriding objective?
CPR 1.1 states that the parties should act in a way which enables the court to deal with the case justly and at proportionate cost.
What are the relevant limitation periods?
Claim for contribution: 2 years from date of judgment imposing liability.
PI Claims: within 3 years of the latest of (a) date of cause of action accrued; (b) date of actual or constructive knowledge of person injured. Extensions to time limit where equitable.
Fatal Accidents Act 1976 Claims: 3 years from date of death or actual / constructive knowledge of dependent.
Latent Negligence (other than PI): 6 years from cause of action accrued or 3 years from when C had material facts about the damage the right to bring a claim. Maximum 15 years from date of most recent negligent act / omission causing all or part of damage.
Judgment claim: 6 years from date judgment became enforceable for capital and interest
Tort / Contract: 6 years from date on which cause of action accrued
When can a limitation period be extended?
For PI and fatal accidents, where equitable.
For disability or children = person lacks capacity to conduct proceedings = time starts running at time childhood / disability ends =
2 years for contribution,
3 for PI / fatal accidents,
6 for other cases.
For fraud = time does not start to run until C discovers fraud, concealment or mistake or could have discovered it with reasonable diligence.
What is the purpose of the Claim Form (Form N1)? When must it be served on the defendant?
To commence proceedings, stop the clock for limitation purposes, set out the key elements of the claim and identify the parties and their addresses. It must be served on the defendant by midnight 4 months after issue.
What is the effect of the claim form on the proceedings?
Commences proceedings in terms of starting time running for serving PoC.
Stops the time running for limitation.
What happens if the claim form is not served within the required time?
The claim automatically fails and the claimant must issue a new claim and pay the court fee again.
What should be included in the value section of the claim form?
The amount sought excluding interest, costs, counterclaims, set-off and state benefits. For specified amounts (e.g a debt), specify the amount. For unspecified amounts (e.g damages, estimate this or state ‘I cannot say’).
In PI claims, state whether the expected value is over £1000
What is the deemed date of service for the claim form?
The second business day after completion of the relevant step (CPR 6.14)
Which claims should be issued in the county court?
=> PI claims worth less than £50k or less than £100k if they are not complex
=> All other claims less than £100k
Which claims should be issued in the High Court?
=> PI claims £50k or over or complex PI claims worth less than £100k
=> all other claims worth £100k or more
=> Claims outwith these thresholds if justified based on financial value, complexity of facts / legal issues / remedies / procedures or public importance.
If a case is wrongly issued in the High Court and the claimant is successful in the case, the court may deduct damages by 25%
What is the Particulars of Claim? When must it be served?
More in depth and the main statement of case. Must be served on the defendant within 14 days from the issue of the claim form and, in any event, within the 4 month deadline for issue of the claim form.
Claimant must file copy of POC at court within 7 days.
Might be included in claim form for simple debt claims, in which case rules for service follow claim form rules.
What is the deemed Date of service for Particulars of Claim?
Depends on method of service used.
If non-instantaneous, i.e post or DX same as claim form (second business day after completion of relevant step).
If instantaneous (fax / email / personally served / delivery at address) then same business day unless served after 4.30 pm (then next business day).
