Pre-Action Conduct and Considerations Flashcards
Limitation
If the proceedings are not commenced within the relevant limitation period, the claimant is barred from recovering damages and defendant will have a full defence. This means the Claimant cannot bring a claim after the limitation period has expired
Date of issue of the Claim Form (at court)
This stops the time running for limitation and starts a new time limit: 4 months for the claim form to be served
Personal Injury Claims
Claimant must bring the claim within 3 years of the latest of:
a) date when the cause of action accrued; or
b) the date of knowledge
If a person is under a disability at the time the cause of action accrued, the limitation period starts to run from when the disability ends
- a person is under a disability whilst they are a minor (under 18)
Fatal Accidents Act
Time limits on claim under Fatal Accidents Act:
a) claim cannot be brought if the person injured could no longer bring a claim
b) claim cannot be brought after 3 years from later of:
a. date of death
b. date of knowledge of dependent
What is the date of knowledge?
Date of knowledge means knowing:
a) injury was significant
b) that it was attributable to the alleged wrongdoing
c) identity of the defendant
d) if it is alleged that the wrongdoing was by someone other than the defendant, the identity of that person and additional facts supporting the claim
Extension of time
The court can extend time in relation to personal injury claims or claims under Fatal Accidents Act if it would be equitable
Court considers:
- conduct of the parties
- reasons for the delay
- effect of late claim on the evidence
Contribution
s1 Civil Liability (Contribution Act) - limitation period is two years from the date on which the right to recover the contribution arose
Latent damage claims
Latent damage refers to hidden or concealed damage which is not readily apparent and may not be discoverable on reasonable inspection.
- Negligence actions where facts relevant to the cause of action are not known at the date of accrual
Negligence claims:
a) six years from when cause of action accrued
b) three years from requisite
i) knowledge; and
ii) right to bring a claim
Long stop limitation date of 15 years
Judgments
An action to enforce a judgment cannot be brought after six years from when the judgment became enforceable, nor can an interest be recovered after that period
Tort and contract claims
- Tort = limitation period expires six years after the date on which the cause of action accrued (date of actionable damage)
- Contract = limitation period expires six years after date on which cause of action accrued (date of breach)
Fraud / concealment / mistake
The limitation period does not start to run until the claimant discovered the fraud, concealment or mistake
Pre-Action Protocol - what is the purpose / principle
Designed to encourage the parties to focus on resolving the dispute without involving the courts
- encourages the parties to consider whether negotiation or ADR might allow them to avoid proceedings
- silence in response to opponent’s suggestion of ADR can be deemed unreasonable conduct
What are the consequences of non-compliance?
- Court decides whether non-compliance should result in adverse consequences
- The most likely consequences are costs and interest
- The court may stay proceedings
- The court can ask for an explanation of non-compliance
Is non-compliance ever justified?
a) A limitation period is about to expire, in which case it may be necessary to issue proceedings before there is time to comply with pre-action requirements
- in this circumstance, the parties will need to apply for a stay of proceedings after issue, so that pre-action procedure can be followed
b) where there is another reason for urgent proceedings or an element of surprise
- e.g., court search order
Pre-action Protocol for Personal Injury Claims
- Claimant should write Letter of Notification to defendant giving brief details, enabling defendant to notify its insurer
- Parties consider any rehabilitation needs
- Claimant writes to defendant giving full details - Letter of Claim
- Defendant to acknowledge Letter of Claim within 21 days
- Defendant investigates and sends full Letter of Response within 3 months of letter acknowledging claim
- Parties disclose key documents, engage in appropriate negotiations and proposals of settlement
- Joint selection of quantum expert, or claimant discloses report and defendant sends written questions
What are the key steps in the Practice Direction for pre-action conduct?
Applies to all cases, unless specific protocol applies which overrides conflicting provisions
a) Letter of Claim: claimant writes to defendant with concise details of the claim
b) Defendant responds to letter of claim within a reasonable period
- straightforward case: 14 days
- complex case: no more than 3 months
c) parties disclose key documents relevant to the issues in the dispute, engage in appropriate negotiations, make proposals for settlement
Disclosure and inspection of the letter of claim
The defendant must disclose and allow inspection of the letter
- It falls within the scope of disclose as it is adverse to the defendant’s claim
- It is an open document (not privileged)
