Pre-action Considerations

Question 1

What 4 pre-action considerations should be considered before issuing a civil claim?

Answer 1

(1) Strength of claim
(2) Limitation Period
(3) Bankrupt / Liquidation D
(4) Type of claim (specified v unspecified)
(4) Pre-action procedure

Question 2

(1) What is a ‘Limitation Period’?

(2) What legislation governs it?

Answer 2

(1) Last day a C can bring proceedings against a D

(2) Limitation Act 1980

Question 3

Will a ‘Limitation Period’ be extended by court?

Answer 3

No UNLESS ‘exceptional circumstances’

Question 4

(1) What is the ‘Limitation Period’ for a ‘Contract’ claim?
(2) What is the exception to this?

Answer 4

(1) 6 years from DATE OF BREACH
(2) UNLESS contract specifies otherwise

Question 5

What is the ‘Limitation Period’ for a Tort (non PI) claim?

Answer 5

6 years from DATE OF DAMAGE

Question 6

What is the ‘Limitation Period’ for a Tort (PI) claim?

Answer 6

3 years from LATER of:
(1) Date of cause of action OR
(2) Date of knowledge (of person injured)

Question 7

What is the ‘Limitation Period’ for a ‘Latent damage’ claim in tort of negligence (i.e. damage hidden)?

Answer 7

LATER of:
(a) 6 years from date of cause of action OR
(b) 3 years from date of knowledge (of damage)
BUT no later than 15 years after date of negligent act

Question 8

At the pre-action stage, what 3 questions should be asked regarding the Parties to a claim?

Answer 8

(1) Who are the D’s?
(2) Where are the Ds?
(3) How should the D be sued?

Question 9

Name 2 possible Ds in these examples:
(a) Employee commits a Tort during the course of their employment?
(b) Defective product?

Answer 9

(a)
(1) Employee
(2) Employer (vicarious liability)

(b)
(1) Manufacturer
(2) Retailer

Question 10

Who will act on behalf of (a) Minor (b) Person with a mental disorder in proceedings brought?

Answer 10

Litigation friend

Question 11

It is important that a D is sued in their correct capacity. What are 2 possible ways a D may be sued?

Answer 11

(1) Individual
(2) Limited company

Question 12

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?

Answer 12

(1) Companies House search (against company)
(2) Bankruptcy search (against individual)

Question 13

(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

Answer 13

(1) Specified claim - Fixed amount of money - e.g. debt
(2) Unspecified claim - Court decides amount of money- e.g. damages

Question 14

(1) What is the overarching goal of pre-action conduct?

(2) What are 4 specific objectives of pre-action conduct?

Answer 14

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

Question 15

There are a number of Pre-Action Protocols. PDPAC is used in any civil claim APART from….(list 4)?

Answer 15

Any civil claim APART FROM:
(1) Debt
(2) PI
(3) Professional negligence
(4) Construction / engineering

Question 16

What are the 3 key principles of the ‘Practice Direction on Pre- Action Conduct and Protocols’ (PDPAC)

Answer 16

(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

Question 17

What are the 4 key steps in the pre-action protocols / PDPACP?

Answer 17

(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

Question 18

In the LETTER BEFORE CLAIM, what 4 things should the C include?

Answer 18

(1) Details of claim
(2) Summary of facts
(3) Remedy sought (e.g. £)
(4) Key documents

Question 19

In the LETTER OF RESPONSE from the D to C:
(1) What 3 things must be included)
(2) What time frame must this be sent in for:
(a) Simple claim
(b) Complex claim

Answer 19

(1)
(i) Claim accepted / not
(ii) Reasons claim NOT accepted
(iii) Counterclaim / not

(2) Reasonable time:
(a) 14 days
(b) 3 months

Question 20

What are the 2 key scenarios PDPAC will NOT need to be followed?

Answer 20

(1) ‘Without notice’ application - e.g. freezing order

(2) ‘Limitation period’ about to expire