Pre Action conduct (non compliance) Flashcards
Compliance with this Practice Direction and the Protocols
If a dispute proceeds to litigation, the court will expect the parties to have complied with a relevant pre-action protocol or this Practice Direction. The court will take into account non-compliance when giving directions for the management of proceedings and when making orders for costs.
The court will consider whether all parties have complied in substance with the terms of the relevant pre-action protocol or this Practice Direction and is not likely to be concerned with minor or technical infringements, especially when the matter is urgent (for example an application for an injunction).
The court may decide that there has been a failure of compliance when a party has—
(a)not provided sufficient information to enable the objectives in paragraph 3 to be met;
(b)not acted within a time limit set out in a relevant protocol, or within a reasonable period; or
(c)unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.
Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that:
(a)the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction;
(b)the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction;
(c)sanctions are to be applied.
The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which may include—
(a)an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties;
(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.
Pre-Action Protocol for Personal Injury ClaimsPre-Action Protocol for Personal Injury Claims
This Protocol sets out conduct that the court would normally expect prospective parties to follow prior to the commencement of proceedings. It establishes a reasonable process and timetable for the exchange of information relevant to a dispute, sets standards for the content and quality of letters of claim, and in particular, the conduct of pre-action negotiations. In particular, the parts of this Protocol that are concerned with rehabilitation are likely to be of application in all claims.
The timetable and the arrangements for disclosing documents and obtaining expert evidence may need to be varied to suit the circumstances of the case. Where one or both parties consider the detail of the Protocol is not appropriate to the case, and proceedings are subsequently issued, the court will expect an explanation as to why the Protocol has not been followed, or has been varied.
Where either party fails to comply with this Protocol, the court may impose sanctions. When deciding whether to do so, the court will look at whether the parties have complied in substance with the relevant principles and requirements. It will also consider the effect any non-compliance has had on another party. It is not likely to be concerned with minor or technical shortcomings (see paragraphs 13 to 15 of the Practice Direction on Pre-Action Conduct and Protocols).
Compliance with the Practice Direction and Protocols: the court’s role
The CPR enables the court to take into account compliance (or non-compliance) with the Practice Direction and applicable protocols when giving directions for the management of proceedings and when making orders as to costs. The courts should treat the protocols as the reasonable approach to pre-action conduct for that type of dispute and are able to impose sanction for breaches.
“(4)Where the court gives directions it will take into account whether or not a party has complied with the Practice Direction (Pre-Action Conduct) and any relevant pre-action protocol;
(5)The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or relevant pre-action protocol.”
Rule 44.2(5) enables the court to take into account when making orders as to costs, the conduct of the parties before, as well as during, proceedings and “in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol”.
The Practice Direction states that the court expects compliance with the substance, if not the letter, of the Practice Direction and the protocols.
This could mean the court ordering:
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the party at fault to pay all or part of the costs of the proceedings to date;
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the party at fault to pay costs on an indemnity basis;
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if the party at fault is the claimant, the court might deprive him/her of some of the interest on damages or apply a reduced rate of interest.
Other possible examples of how the court might react to non-compliance include:
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where a claimant has issued prematurely, giving the defendant an extension of time to serve the defence; or
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where a defendant had not replied adequately or in time to the letter of claim, but did have a good defence, and the claimant wants to discontinue proceedings when the defence is served, ordering the defendant to pay some or all of the claimant’s costs.
Parties are asked to state whether they have complied with any relevant protocol in their Directions Questionnaire but not whether the other party has not complied and whether the court is being invited to apply a sanction.
Sanctions for not complying with the protocol
Chapman v Tameside Hospital NHS Foundation Trust, 15 June 2016, unrep., Bolton County Court
In a case arising from a slipping accident at the A&E department, in reply to a letter of claim the Trust said they had no documents to disclose. After the claim was issued the Trust disclosed two sets of documents which led the claimant to discontinue. The court held that the Trust was in breach of the personal injury protocol if they had disclosed the documents pre-action it was likely the claim would not have been issued.
The Trust’s conduct typified the behaviour costs sanctions were intended to deter, so the Trust was ordered to pay the claimant the costs that would have been recovered had the case gone to trial less the costs the claimant incurred after the documents were disclosed.
Potential risks and justifications for non-compliance.
The most significant risk of an insufficient response is that if proceedings are issued, a sanction may be imposed or an adverse order as to costs made.
A court may ask the parties to explain what steps were taken to comply with the practise direction pre action conduct and protocols and may ask a party to explain any failure to comply requiring evidence.
There are some circumstances in which non-compliance with pre-action requirements may be justified, though a court may be slow to accept non-compliance that is not clearly justified, especially if it frustrates settlement or increases costs unnecessarily.
* If the relevant limitation period is about to expire it may be necessary to issue proceedings to ensure that they are issued in time. Pre action requirements should be satisfied so far as is reasonably possible in the time available. If proceedings are started to comply with the statutory time limit before the parties had followed the procedures in the practise direction or a relevant pre-action protocol, the parties should apply to the court for a stay of the proceedings while they comply.
* A need to take action urgently may justify a failure to comply with pre-action requirements where, for example, telling another potential party in advance would defeat the purpose of an application, as would be likely to be the case in an application for a freezing injunction. However even in a case of an urgency the parties should still comply with the pre action process to the extent it is reasonable to do so.
Non-compliance by another party will not in itself provide an excuse for failing to comply with pre action requirements. The appropriate course of action is to raise the noncompliance specifically so it can be addressed if possible, and keep evidence of the non-compliance by the other side, rather than being lured into mirroring non-compliance.
Failure to comply with pre action protocols
The court can take into account the extent of the parties compliance with the pre-action protocols and practice direction pre action conduct and protocols when making case management and costs orders. Non compliance can include an unreasonable refusal to use a form of ADR or failing to respond at all to an invitation to do so. A party’s silence in response to an invitation 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. The sanctions that a court can impose for non compliance with the protocols include:
* staying the proceedings
* Ordering that the party at fault pays the costs, or part of the costs, of one or more of the other parties.
* An order that the party at fault pays those costs on an indemnity basis
* If the party at fault is the claimant who has been awarded a sum of money and ordered 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
* If the party at fault is the defendant coma and the claimant has been awarded a sum of money, an order awarding interest on that some for a specified period at a higher rate (not exceeding 10% above the base rate) then the right which would otherwise have been awarded.
adverse costs orders have been made in a number of cases for failing to follow reasonable pre-action conduct in accordance with the provisions and spirit of the protocols and practise direction pre action conduct and protocols. However, the court has refused to strike out a claim for non-compliance with the relevant provisions of practise direction pre action conduct then in force. Non-compliance may result in an indemnity costs order, however. The court may also penalise a party for failing to consider ADR pre issue.
Practise direction pre-action conduct and protocols and the pre action protocols also provide that a party 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 their party to pay additional costs.
