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Civil Litigation > Pre-action Conduct (Syllabus 3). > Flashcards

Pre-action Conduct (Syllabus 3). Flashcards

1
Q

What are pre-action protocols?

A

they set out the steps the court would normally expect parties to undertake before commencing proceedings

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2
Q

Before proceedings are commenced what is the expectation of the court?

A

that parties will have exchanged sufficient information to:

(1) understand each other’s position
(2) make decisions about how to proceed
(3) try to settle the issues without proceedings
(4) consider a form of ADR to assist with settlement
(5) support the efficient management of proceedings; and
(6) reduce the costs of resolving the dispute

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3
Q

Can a party recover disproportionate costs that arise from alleged compliance with a pre-action protocol?

A

No, any costs for complying with a pre-action protocol must be proportionate

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4
Q

What steps should be taken before issuing a claim?

A

any steps that the party should take to comply with the pre-action protocol.

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5
Q

What should a party do if there is no relevant pre-action protocol?

A

The parties should exchange correspondence to comply with the objectives in para 3. The steps will usually include:

(1) the claimant should write to the defendant with concise details of the claim.
(2) the defendant should respond in a reasonable time (14 days in a straight forward claim; no more than 3 months for a complex claim).
(3) the parties should disclose any key documents relevant to the issues in dispute

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6
Q

Is the court’s permission needed to rely on expert evidence?

A

Yes.

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7
Q

If proceedings are issued what might the court require the parties to prove?

A

that ADR has been considered.

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8
Q

What should the parties do if the dispute has not been resolved after the parties have followed the pre-action protocol?

A

they should consider the papers and evidence to see if proceedings can be avoided and to narrow the issues in dispute before the claimant issue proceedings.

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9
Q

How do the pre-action protocols affect limitation periods?

A

They have no effect. If a party is at risk of running out of time to issue a claim, they should issue their claim then apply to the court to stay the proceedings whilst they comply with the pre-action protocol

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10
Q

Do the codes need to be followed completely?

A

No, they are codes of best practice which only need to be followed generally.

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11
Q

Can the period for the defendant to investigate and respond be varied?

A

Yes, by the consent of the parties.

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12
Q

How much detail should a letter of claim include?

A

It depends on the complexity of the claim.

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13
Q

What can the parties apply to the court for at the pre-action stage?

A

pre-action disclosure, but not for any pre-action rulings.

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14
Q

What is the general aim of the pre-action protocol for personal injury claims?

A

The pre-action protocol for personal injury claims applies to claims which are likely to be allocated to the fast track. It sets out the conduct that court would normally expect prospective parties to follow prior to the commencement of proceedings.

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15
Q

How long does the pre-action protocol for personal injury claims recommend that the defendant be given before they respond to a claim?

A

3 months

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16
Q

Do litigants in person have to comply with the pre-action protocols?

A

Yes, so far as it is possible to do so.

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17
Q

What are the general aims of the protocol?

A

(1) encourage the exchange of early and full information about the dispute
(2) encourage better and earlier pre-action investigation by all parties
(3) enable the parties to avoid litigation by agreeing a settlement of the dispute before proceedings are commenced.
(4) support the just, proportionate and efficient management of proceedings where litigation cannot be avoided; and
(5) promote the provision of medical or rehabilitation treatment to address the needs of the Claimant at the earliest possible opportunity.

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18
Q

What is the letter of notification?

A

the claimant or his legal representative may wish to notify a defendant as soon as they know a claim is likely to be made but before the Letter of Claim is made

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19
Q

What should the letter of notification do?

A

It should advise the defendant of any relevant information that is available to assist with determining issues of liability/suitability of the claim for an interim payment

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20
Q

What is the time limit for acknowledging the Letter of Notification?

A

it should be acknowledged within 14 days of receipt.

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21
Q

What should the parties consider regarding rehabilitation?

A

the parties should consider whether the claimant has reasonable needs that could be met by medical treatment or other rehabilitative measures. Consideration of rehabilitation options should be an on going process throughout the entire Protocol period

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22
Q

What is the Letter of Claim?

A

the defendant should send the claimant two copies of the Letter of Claim.

1 copy is for defendant, the second copy is for the defendant to pass on to the insurer (within 7 days).

23
Q

What should the Letter of Claim contain?

A

a clear summary of the facts on which the claim is based together with an indication of the nature of any injuries suffered and the way that these impact the claimant’s day to day function. Any financial loss incurred by the claimant should be outlined with the heads of damage to be claimed.

24
Q

What is the status of letters of claim and response?

A

these are not intended to have the same formal status as statements of case in proceedings.

25
Q

How many days does the defendant have to send the Response?

A

the defendant must reply within 21 calendar days of the date of posting of the letter identifying the insurer.

26
Q

What happens if the defendant does not respond to the letter of claim within 21 days?

A

the claimant is entitled to issue proceedings

27
Q

How long does the defendant have to investigate following the date of acknowledgement of the letter of claim?

A

3 months

28
Q

Where the parties are outside of the jurisdiction what is the time limit extended to?

A

from 3 months and 21 days to 6 months and 42 days.

29
Q

What should happen if a defendant denies liability and/or causation?

A

they should put forward their version of events?

30
Q

What is the Protocol’s position in relation to experts?

A

the protocol encourages the joint selection of an expert

31
Q

What should the parties do before instructing an expert?

A

provide the other side a list of names of one or more experts whom they consider suitable to instruct.

32
Q

In how many days must a party indicate an objection to any of the named experts?

A

14 days

33
Q

where the claimant has nominated an expert in the original Letter of Claim how long does the defendant have to object?

A

they have an extra 14 days to object after the expiration of the 21 day period within which they have to reply to the Letter of Claim

34
Q

What should the claimant send to the defendant if the defendant admits some liability?

A

medical reports, a schedule of past or future expenses and losses which are claimed.

35
Q

What should happen if the defendant admits liability?

A

the claimant should send the defendant a schedule of any past and future expenses and losses which he claims.

36
Q

What should the schedule include?

A

as much detail as reasonably practicable and should identify the losses that are ongoing. The claimant should keep the defendant informed as to the rate at which his financial loss is progressing.

37
Q

What should the parties do if the procedure set out in the protocol does not resolve the dispute between the parties?

A

they should look at the strengths and weaknesses of their own cases, consider the evidence and arguments to see if litigation can be avoided.

38
Q

What is the scope of the personal injury pre-action protocol?

A

it applies to potential fast track cases with a value of up to £25,000. The general approach should still be followed in larger claims.

39
Q

What happens if the defendant objects to all of the claimant’s experts?

A

he can instruct his own expert, but at the allocation stage the court will determine whether the cost of two expert’s is necessary.

40
Q

What does the protocol state in relation to expert reports?

A

the disclosure does not state what should happen if the claimant obtains a report which the claimant does not wish to disclose.

41
Q

If a dispute proceeds to litigation does the court expect the parties to have complied with a relevant pre-action protocol?

A

Yes.

42
Q

When might the court decide that there has been a failure to comply with the personal injury pre-action protocol?

A

If a party has:

(1) not provided sufficient information to enable the objectives of the Protocol to be met.
(2) not acted within a reasonable time limit set out in a relevant protocol, or within a reasonable period; or
(3) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.

43
Q

What might the court order if there has been non-compliance with a pre-action protocol?

A

(1) the parties are relieved of the obligation to comply or further comply with the pre-action protocol
(2) the proceedings are stayed while particular steps are taken to comply with the pre-action protocol.
(3) sanctions are to be applied

44
Q

What is the court’s role to ensure compliance with the practice direction and protocol?

A

the court will treat compliance with the pre-action protocol in the same way as taking a reasonable approach to ADR.

45
Q

What are the sanctions for not complying with the Protocol?

A

if a party is in breach of the personal injury pre-action protocol, the court may impose costs sanctions.

46
Q

What should litigation be?

A

a last resort

47
Q

What are some of the options for resolving disputes without commencing proceedings?

A

(1) discussions and negotiations
(2) mediation
(3) arbitration
(4) early neutral evaluation

48
Q

What does the revised edition of the Pre-action protocol do?

A

it increases the focus on ADR, aiming to enable the parties to understand each other’s position and to settle the issue between them without the need to start proceedings

49
Q

What is the most significant risk of an insufficient response?

A

a sanction or adverse costs order may be made

50
Q

When might non-compliance with pre-action requirements be justified?

A

(1) if the relevant limitation period is about to expire

(2) if there is a need to take action urgently.

51
Q

Does non-compliance of another party provide an excuse for failing to comply with pre-action requirements?

A

No, the appropriate course of action is to raise the non-compliance specifically so it can be addressed.

52
Q

Can a party’s silence in response to an invitation to engage in ADR be considered unreasonable by the court?

A

Yes

53
Q

What sanctions might the court impose for non-compliance?

A

(1) staying the proceedings
(2) making a costs order
(3) an order depriving the party at fault from claiming interest

54
Q

Will the court strike out a claim for failing to follow reasonable pre-action conduct?

A

It is unlikely. However, a failure to engage in pre-action conduct might be an abuse of the court’s process that could cause a strike out of the claim

Civil Litigation (24 decks)

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