Pre-action Considerations And Conduct

Question 1

What are pre-action protocols?

Answer 1

The conduct and steps the court would normally expect parties to take before commencing proceedings for particular types of claims

Question 2

What are the objectives of the pre-action conduct and protocols? C1-002

Answer 2

The court will expect the parties to chase exchanged information to -
(A) understand each other’s position
(B) make decisions on how to proceed
(C) try to settle the issues without proceedings
(D) consider a form of ADR to assist the settlement
(E) support the efficient management of those proceedings
(F) reduce the costs of resolving dispute

Question 3

What does it mean to be proportionate with the pre-action protocols?

Answer 3

• that the pre-action protocol is not being used as a tactical measure
• that the costs of the Pre-action protocols are proportionate

Question 4

Steps before issuing a claim at court. C1-004

Answer 4

(A) the claimant writing to the defendant with concise details of the claim.letter should include the basis of that claim, summary of the facts, what the claimant wants, and if there is money a calculation.
(B) the defendant should respond, within 14 days of a straight forward claim and no more than 3 months in a complex claim. The reply should include information as to whether the claim is accepted, and if not, the defeat must explain concisely why it is not accepted and outline any counterclaim
(C) the parties disclose any key documents relevant to the case

Question 5

Pre-action protocol considering Experts. C1-005

Answer 5

Parties are to be aware that the court must permit the use of expert evidence and that the court can limit the fees recoverable
It has to be necessary to use an expert, but parties may consider sharing the costs of a single expert used

Question 6

Pre-action considerations - Stocktake and list of issues. C1-007

Answer 6

Where dispute has not been resolved and pre-action protocol has been adhered, then th parties should review their position.
Parties should consider to resolve the issue themselves from this stocktake or consider narrowing the issues at this point.

Question 7

Pre-action consideration - Limitation issues. C1-009

Answer 7

If the claim is issued after statutory time limit, then it will be a defence to the defendant.
Claimant may want to issue the proceedings and then ask the court for stay of proceedings to comply with the protocol.

Question 8

Points to note when applying the protocols. C1A-005

Answer 8

• the court will keep in mind the need for proportionality, saving costs and the efficiency of the progress of litigation in terms of complying with the protocol
• if the case is complex or the defendant had no knowledge or it happened a while ago, the court will bare this is mind when considering the efficiency
• protocol does not set out specific steps to resolve the issue, but encourages the use of ADR
• part 36 offers to settle can have similar costs to post-commencement offers.

Question 9

Pre-action applications. C1A-007

Answer 9

While parties can apply for pre-action disclosure under CPR31.16, generally they cannot apply to the court, pre-issue for rulings on other matters.

Question 10

Pre-action protocol for personal injury claims

Answer 10

C2-001.
For personals injury claims which are likely to be allocated to a fast tract claim. Not only to the personal injury element of a claim, it applies to the whole claim.

Question 11

If at any stage the claimant values the claim at more than the upper limit of the fast track, the claimant should……..

Answer 11

Notify the defendant as soon as possible. Advocate the “cards on the table” approach

(Letter of notification)

Question 12

Which styles of claims are not intended to be subjected to this protocol?

Answer 12

• the Pre-Action Protocol for low value personal injury claims in road traffic accidents from the 31 July 2013
• the pre-action protocol for low values personal injury (employers liability and public liability) claims
• the pre-action protocol for the resolution of clinical disputes
• the pre-action protocol for disease and illness claims
• the pre-action protocol for personal injury claims below the small claims limit in road traffic accidents (“the RTA Small Claims Protocol”)

Question 13

If the parties fail to comply with the pre-action protocol…

Answer 13

…the court may impose sanctions

Question 14

What is the purpose of the Personal Injury Pre-action Protocol?

Answer 14

Establishes a reasonable process and timetable for exchange of information, sets a standard for equality and content of the letters of communication, sets a reasonable timetable for this process, conduct of any pre-action negotiations.

Question 15

Can there be variation in the Personal injury pre-action protocol timetables set for disclosure of documents etc?

Answer 15

Yes, if circumstances change, there can be variation for this timetable. This will have to be explained to the court.

Question 16

According to the Personal Injury pre-action protocol, how long does a defendant have before proceedings are issued?

Answer 16

The Protocol recommends 3 months, however this can be extended for the service of the documents etc, or even there can be an application for a stay in proceedings for the defendant to comply with the protocol

Question 17

What about litigants in person with complying with the Personal Injury Per-Action Protocol?

Answer 17

They are expected to fully adhere to the pre-action protocol as far as reasonably possible

Question 18

Overview of the Personal Injury Pre-action Protocol

Answer 18

The objectives are: -
(A) encourage the exchange of early and full information about the dispute
(B) encourage better and early pre-action investigation
(C) enable the parties to settle dispute early, before commencement of litigation and avoid it
(D) where proceedings cannot be avoided, sure they are just, proportionate and efficient.
(E) promote the provision of early medical rehab treatment for the claimant as early as possible

Question 19

The letter of notification - Personal Injury Pre-Action Protocol

Answer 19

• C or representative may wish to notify D or D’s insurers as soon as they know a claim is about to be made before a detailed latter of claim. Can be where D has no knowledge or C wants expenses covered due to injury
• letter of notification should advise about relevant information about the issues for interim payment or early rehab
• letter of notification should be acknowledged within 14 days but does not start the timetable for the Letter of Response.

Question 20

Rehabilitation - Personal Injury Pre-Action Protocol

Answer 20

• parties should consider as soon as possible if medical treatment or rehab is needed
• rehabilitation code may be useful for these discussions
• time limit for the defendant to investigate (3 months) shall not be shortened except by consent to allow these issues to be addressed
• consideration of rehab options should be done by both parties
• immediate assessment reports or documents associated will not be used in proceedings

Question 21

Letter of claim - Personal Injury Pre-Action Protocol

Answer 21

• claimant should send two copied of the letter of claim, one to D and one for D’s insurers
• D must pass on letter of claim to insurers within 7 days
• the letter should contain concise facts, the injuries sustained, how these injuries have impacted C on their life and a outline of the financial loss.
• details of C’s date of birth and National insurance number should be supplied to D’s insurers. Information must not be supplied in letter of claim.
• once C has sent letter of claim, they do not investigate further in terms of liability until D responds disputing it

Question 22

Status of letters of claim - Personal Injury Pre-Action Protocol

Answer 22

They are not intended to have the same status of statements of case.

Question 23

When must the Defendant respond to Letter of Claim - Personal Injury Pre-Action Protocol

Answer 23

D must reply within 21 calendar days of the date of posting the letter of identifying their insurer.
Where there has been no reply, then the C will be entitled to issue proceedings

Question 24

What insurers must do in reaction to the letter of claim - Personal Injury Pre-Action Protocol

Answer 24

If the insurer is aware of any omissions, they should identify them specifically.
If they are aware of any issues with the identification of the defendant or any others they must do this within the response period

Question 25

Timeline for a defendant (insurer) from acknowledging the letter of claim - Persona Injury Pre-Action Protocol

Answer 25

They will have a maximum of 3 months of investigating. They should state no later than this period if they accept liability.

Question 26

Contents of admitted liability from defendant (insurer) - Personal Injury Pre-Action Protocol

Answer 26

The defendant (insurer) response should contain:
- liability is admitted by admitting the the accident occurred
- caused by a D’s breach of duty
- C suffered loss
- no limitation defence

Question 27

How is the timeline affected if the accident happened outside the jurisdiction of England and Wales - Personal Injury Pre-action Protocol

Answer 27

The timeline of 21 days and 3 months will be extended to 42 days and 6 months

Question 28

If liability is denied - Personal Injury Pre-Action Protocol

Answer 28

D’s version of events should be contained in the letter of response, including documents which support the denial

Question 29

Status of an admission under the Personal Injury Pre-Action Protocol

Answer 29

An admission will be binding on that party in litigation.

Question 30

Disclosure of information - Personal Injury Pre-Action Protocol

Answer 30

Early exposure helps there to be “all cards on the table“ and there being no “fishing expeditions” for information
Where liability is accepted, then disclosure is limited to the information relevant for the quantum of damages
Documents destroyed will count as abuse of court process
D is under the protocol to disclose all relevant documents and evidence, eg. CCTV

Question 31

Experts: Claims not involving whiplash - Personal Injury Per-Action Protocol

Answer 31

Claimant must get medical report for D to accept or dispute it
Before a party instructs an expert, they must disclose information of relevant experts to consider being used.
If medial report is requested from agency, then this must be done with D’s permission
Where medical expert is instructed, then C’s solicitors will organise access to relevant medical reports
Within 14 days of providing thee list of experts, the D must respond with an objection to any of them.
Then a mutually accepted expert will be instructed
If D rejects all listed names, then each party instructs their own.
If D does not reject all of names of experts, they wont be able to use their own, save for:
- C agreeing;or
- Court directs so; or
- C’s expert report is amended and C won’t share original
Parties must send questions to expert within 28 days of report
Parties may obtain further reports

Question 32

Experts: Claims involving whiplash - Personal Injury Pre-Action Protocol

Answer 32

C must follow one of the following procedures:
- C must obtain a fixed cost medical report
- where a medical expert is instructed, they wont need to see any medial records
- where C is outside England and Wales, but chooses to be examined for a medial report, the two above points apply
- where the whiplash is alongside other serious injuries, then the overall medical report can be used so long as it is completed by a registered doctor and that the report contains the whiplash injury
- if C is outside England and Wales and wishes to gain medical report, it must be completed by doctor registered in that jurisdiction

Question 33

Negotiations following admission - Personal Injury Pre-Action Protocol

Answer 33

If d has accepted liability, C must send D:
- medical report
- schedule of past and future expenses and losses which are claimed
C must delay the issuing of proceedings for 21 days after doing above (unless time-bar issues) for the claim to be settled outside of court
Parties should consider if it’s appropriate for part 36 offer

Question 34

Whiplash Injury Regulations - Personal Injury Pre-Action Protocol.

Answer 34

Provided that the claim involves a whiplash injury, and until after the disclosure of the fixed cost medical report:
- no offer may be made, invited or accepted by either party; and
- payment shall be made by D or accepted by C

Question 35

ADR - Personal Injury Pre-Action Protocol

Answer 35

Parties should consider ADR
Parties may be required to have used ADR before issuing proceedings in court

Question 36

Quantification of loss: Special Damages - Personal Injury Pre-Action Protocol

Answer 36

C must create a schedule of all the past and present losses and expenses which are detailed. They must specify if the losses are ongoing etc.

Question 37

Stocktake - Personal Injury Pre-Action Protocol

Answer 37

The parties are required to take stock on the prostions that they are at. They might consider evidence and legal issues if they so change and or change their position in the case. They must see if the legal issues can be resolved or even narrowed throughout this process.
C or their solicitor are recommended to invite D’s insurers to nominate the insurer to nominate a solicitor to act on their behalf, this has to be done 7-14 days before the intended issue date

Question 38

Solicitors responsibility regarding medical records

Answer 38

Recommends that C’s solicitor should be responsible for organising access to C’s medical records.

Question 39

Disclosure of an expert’s report - C2A-003

Answer 39

the protocol does not deal with what happens when the claimant obtains a report which the claimant does not wish to disclose as its is either unhelpful or unsatisfactory. the personal injury protocol does not require a medical expert, selected in accordance with the protocol, to be jointly instructed, or the report to be disclosed to the defendant, where the expert’s identity has not been revealed.

Question 40

The court may decide that there has been a failure to comply with the Pre-Action Protocol if…

Answer 40

…a party has:
(A) not provided sufficient information about the objectives of the pre-action protocol
(B) not accede within a time limit, in or out of the protocol
(C) unreasonably refused a form of ADR or responded to any invitation

Question 41

Where there has been non-compliance with the pre-action protocol, what may the court order?

Answer 41

(A) The parties are relived of the obligation to further comply with the pre-action protocol
(B) proceedings are stayed until steps are taken to form compliance
(C) sanctions are to be applied

Question 42

The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which may include -

Answer 42

(A) orders that the party art fault to pay for proceedings or part of costs
(B) party at fault to pay the costs on an indemnity basis
(C) if the party is a claimant and claiming for money, they can have a reduction on their interest claimed or depriving them of the interest all together
(D) if the party at fault is D, award the C’s interest at a higher rate, not exceeding above 10%

Question 43

The courts role with the compliance of the pre-action protocol

Answer 43

They can impose sanctions in the form of costs or order parties to pay a sum of money for their non-compliance.

Question 44

Spink v Shepherd construction Ltd (dont have to remember but in commentary in syllabus)

Answer 44

Where the defendant delayed the proceedings for not filing a defence and judgment in default was entered. The C died. Master refused to set the judgement in default aside on the reasons that the delay had deprived C from the proceedings.

Question 45

Sanctions for not complying with the personal injury pre-action protocol

Answer 45

Chapman v Tameside NHS Hospital trust
Where the trust had failed to disclose documents until after the issue of proceedings, which caused C to discontinue with the proceedings. Court ordered the trust to pay for C’s costs as C would not have issues proceedings if the disclosure happened in accordance with the Personal Injury Pre-Action Protocol

Question 46

What are some of the circumstances where the pre-action protocol wont be adhered to in refusing ADR?

Answer 46

• where the statutory limitation is close, so refusal of ADR would be reasonable here so long as the rest of the protocol is adhered top as reasonably as it can be
• there could be a case of urgency in terms of the circumstances of the case, i.e. freezing injunctions and non-molestation orders
• if non-compliance is inevitable, it needs to be raised

Question 47

Cable v Liverpool Victoria Insurance Co Ltd

Answer 47

Where failure to comply with pre-action protocol can be seen as an abuse of court process, especially in terms of refusal of ADR pre-issue

Question 48

Purpose of using ADR for the position of the parties during pre-action stage

Answer 48

ADR can be used to understand the position of each of the parties in order for them to see whether to issue proceedings

Question 49

what is the limitation period for an action in tort?

Answer 49

6 years, from the date on which the cause of action accrued.

Question 50

where there are same causes of action in the same set of facts, the limitation period will start…

Answer 50

from the first occasion

Question 51

what is the status of the time limitation?

Answer 51

it is a defence, meaning that proceedings could, in theory, still go ahead but the defendant has a full defence if proceedings are brought outside the limitation.

Question 52

time limit on simple contract cases

Answer 52

6 years, from the date on which the cause of action accrued.

Question 53

time limit for claiming contribution under section 1 of the Civil Liability (contribution) Act 1978

Answer 53

2 years from the date of which the right to recover accrued.

Question 54

for contribution, what is the date from which the right to recover accrues for the party found liable?

Answer 54

it can be the date of which the judgment has been handed down, or when the arbitration has given the award. where these two dont apply, then where there is payment to be made to the claimant, then the earliest date on which the amount to be paid is agreed shall be the relevant date of accrual

Question 55

what is the time limit when the cause of action (negligence, nuisance or breach of duty) amounts to a personal injury claim?

Answer 55

3 years from:
- the date on which the cause of action accrued; or
- the date of knowledge of the person injured

Question 56

if the person dies as a result to personal injury, then what is the time limit?

Answer 56

3 years from:
- date of death
- date of knowledge of the persons representative.

Question 57

time limits of a cause of action under Fatal Accidents Act 1976

Answer 57

claim cannot be brought if the person injured (the employee in our example) could no longer bring a claim. In most cases, you will need to apply the personal injury rules on the previous page to ascertain this, from the injured person’s perspective.

other than that the time bar is 3 years, from:
- date of death; or
- date of knowledge of the dependent.

Question 58

meaning of “date of knowledge” for personal injury and fatal accidents.

Answer 58

the date on which C had the knowledge of the following facts:
- injury in question was significant
- the injury was attributable in whole or in part to the act or omission which is the cause of the action
- identity of the Defendant
- if it is alleged that the actor or omission was that of someone other than D, the identity of that person and the additional facts to support it

Question 59

meaning of “date of knowledge” for death caused by defective product

Answer 59

• person who had suffered damage found it sufficiently serious to justify instigating proceedings
• damage was wholly or partly caused by the defect
• identity of the defendant

Question 60

when is an injury deemed significant when considering the date of knowledge?

Answer 60

if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

Question 61

for the purposes of limitation rules, what does a persons knowledge include?

Answer 61

includes knowledge they might reasonably been expected to acquire:
- from facts observable or ascertainable by them; or
- from facts ascertainable by them with the help of medical or appropriate expert advice reasonably for them to seek

Question 62

what is the special time limit for negligence actions where facts relevant to the cause of action were not known on the date of accrual?

Answer 62

the period is either:
- 6 years from the date of accrual; or
- 3 years from the requisite knowledge and the right to bring a claim.

Question 63

what is overriding time limit for negligence actions not involving personal injury?

Answer 63

shall not be brought after 15 years from the date on which there occurred any acts or omissions:
- which alleged to constitute negligence; and
- which the damage is alleged to be wholly or partly attributable

Question 64

what is the time limits for enforcing judgments

Answer 64

an action shall not be brought upon any judgment after the expiration date of 6 years from the date on which the judgment became enforceable.

Question 65

extension of limitation period in the case of a disability

Answer 65

the limitation period will start to run from the date on which the disability ends. this does not apply to where the person under a disability is claiming as a representative, i.e. in a fatal accidents claim.

Question 66

what is the postponement of limitation period of fraud, concealment or mistake?

Answer 66

where in the case of any action, the action is based on:
- the fraud of D; or
- any fact relating to the plaintiff has been concealed by D; or
- the action for relief is from the consequences of a mistake;

then the period of limitation will run from when C discovered the fraud, concealment or mistake.

Question 67

what is the meaning of disability when it comes to limitation?

Answer 67

it means whether someone is a child or lacks capacity under the Mental Health Act 2005.

Question 68

when does the limitation period start when the Claimant is a child?

Answer 68

the moment they turn 18 years of age; the date of their 18th birthday

Question 69

what is the meaning of “knowledge” for the purposes of section 14 Limitation Act? (personal injury and death) - commentary

Answer 69

Knowledge for the purposes of section 14 imports a state of mind that, for the claimant, reasonably justified embarking on the preliminaries to making a claim for compensation, and once gained, cannot be lost.

the court has firmly rejected the argument that the claimant must know he had a possible cause of action.

it was also held that the court must look at the essence of a complaint and enquire how far the claimant had knowledge in board terms of the facts on which it was based. however it was erroneous to see how the actual case would be put.

also, ignorance to matters of law is not relevant

Question 70

does section 14 A Limitation Act apply to breach of duties under a contract?

Answer 70

No

Question 71

date of which limitation is calculated

Answer 71

it was held that when a deadline expired at midnight on a given day, any cause of action arising from a failure to meet the deadline arose on the stroke of midnight, not on the following day. Therefore the following day was not excluded when calculating the expiry of the relevant limitation period. In contrast, when the cause of action accrued part-way through a day, it was well established that the day on which the cause of action accrued was excluded.

Question 72

the date of when an action is “brought”

Answer 72

where a claim form is issued at the court, that is when the claim has been brought in the meaning of the Limitation Act.
where the correct fee was not paid then this will not constitute a valid issue therefore not have the claim “brought”
the period of a stay of proceedings will not count towards the time limit for service of the claim form.

Question 73

at stages of the litigation should ADR be considered?

Answer 73

all the way through.

Question 74

what are some of the options to resolve dispute without commencing proceedings?

Answer 74

• part 36 offers
• mediation
  -negotiation
• ENE

Question 75

what will the court need to show that ADR has been considered

Answer 75

evidence of that effect