Pre-action Considerations Flashcards
What 5 pre-action considerations should be considered before issuing a civil claim?
(1) Strength of claim
(2) Parties (to claim)
(3) Limitation Period
(3) Bankrupt / Liquidation D
(4) Type of claim (specified v unspecified)
(5) Pre-action procedure
(1) What is a ‘Limitation Period’?
(2) What legislation governs it?
(1) Last day a C can bring proceedings against a D
(2) Limitation Act 1980
Will a ‘Limitation Period’ be extended by court?
No UNLESS ‘exceptional circumstances’
(1) What is the ‘Limitation Period’ for a ‘Contract’ claim?
(2) What is the exception to this?
(1) 6 years from DATE OF BREACH
(2) UNLESS contract specifies otherwise
What is the ‘Limitation Period’ for a Tort (non PI) claim?
6 years from DATE OF DAMAGE
What is the ‘Limitation Period’ for a Tort (PI) claim?
3 years from LATER of:
(1) Date of injury OR
(2) Date of knowledge (of person injured)
What is the ‘Limitation Period’ for a ‘Latent damage’ claim in tort of negligence (i.e. damage hidden)?
LATER of:
(a) 6 years from date of damage OR
(b) 3 years from date of knowledge (of damage)
BUT no later than 15 years after date of negligent act
At the pre-action stage, what 3 questions should be asked regarding the Parties to a claim?
(1) Who are the D’s?
(2) Where are the Ds?
(3) How should the D be sued?
Name 2 possible Ds in these examples:
(a) Employee commits a Tort during the course of their employment?
(b) Defective product?
(a)
(1) Employee
(2) Employer (vicarious liability)
(b)
(1) Manufacturer
(2) Retailer
Who will act on behalf of (a) Minor (b) Person with a mental disorder in proceedings brought?
Litigation friend
It is important that a D is sued in their correct capacity. What are 2 possible ways a D may be sued?
(1) Individual
(2) Limited company
It is important to determine if a D has sufficient resources to pay off a judgment. What are the 2 main searches that should be done against a potential D?
(1) Companies House search (against company)
(2) Bankruptcy search (against individual)
(1) What are the 2 main types of claim that can be issued and what do they mean?
(2) What is the most common example of each
(1) Specified claim - Fixed amount of money - e.g. debt
(2) Unspecified claim - Court decides amount of money- e.g. damages
(1) What is the overarching goal of pre-action conduct?
(2) What are 4 specific objectives of pre-action conduct?
Encourage early resolution and ensure litigation is last resort
(a) UNDERSTAND each other’s position
(b) Attempt to SETTLE
(c) Consider ADR
(d) Reduce COSTS and increase EFFICIENCY
There are a number of Pre-Action Protocols. PDPAC (Practice Direction on Pre Action Conduct) is used in any civil claim APART from….(list 4)?
Any civil claim APART FROM:
(1) Debt
(2) PI
(3) Professional negligence
(4) Construction / engineering
What are the 3 key principles of the ‘Practice Direction on Pre- Action Conduct and Protocols’ (PDPAC)
(1) EXCHANGE OF KEY INFO - to achieve objects of pre-action conduct
(2) ADR - ‘reasonable’ attempts engage with ADR
(3) PROPORTIONALITY - ‘reasonable and proportionate’ steps’ to resolve matter
What are the 4 key steps in the pre-action protocols / PDPACP?
(1) LETTER BEFORE CLAIM - C to D
(2) LETTER OF RESPONSE - D to C
IF claim not accepted:
(3) Consider ADR
(4) NARROW ISSUES in dispute
In the LETTER BEFORE CLAIM, what 4 things should the C include?
(1) Details of claim
(2) Summary of facts
(3) Remedy sought (e.g. £)
(4) Key documents
In the LETTER OF RESPONSE from the D to C:
(1) What 4 things must be included)
(2) What time frame must this be sent in for:
(a) Simple claim
(b) Complex claim
(1)
(i) Claim accepted / not
(ii) Reasons claim NOT accepted
(iii) Counterclaim / not
(iv) Key documents
(2) Reasonable time:
(a) 14 days
(b) 3 months
What are 3 possible COST consequences of a Party failing to follow PDPAC?
(1) Defaulting party pay some / all opponent’s cost (indemnity basis?)
(2) C get no / less INTEREST on damages
(3) D higher rate INTEREST on damages
What are the 2 key scenarios PDPAC will NOT need to be followed?
(1) ‘Without notice’ application - e.g. freezing order
(2) ‘Limitation period’ about to expire
