Pre-action considerations and steps Flashcards
When does the Pre-action Protocol for Personal Injury Claims apply
Person injury claims, which do not fall within another pre-action protocol and which are likely to be allocated to the fast track with a value of up to £25,000
What relevance does the Pre-action Protocol for Personal Injury Claims have to cases above £25,000
The ‘spirit’ of the protocol should be followed
Pre-Action Protocol for Personal Injury Claims - 1st step
Claimant should write a Letter of Notification to potential defendant giving brief details, to enable defendant to notify its insurer
Pre-Action Protocol for Personal Injury Claims - 2nd step
Parties consider any rehabilitation needs (i.e. any ongoing medical and care needs) and how to address them
Pre-Action Protocol for Personal Injury Claims - 3rd step
Claimant should write to the defendant to give full details of the claim (Letter of Claim)
Pre-Action Protocol for Personal Injury Claims - 4th step
Defendant to acknowledge Letter of Claim within 21 days
Pre-Action Protocol for Personal Injury Claims - 5th step
Defendant to investigate and send full Letter of Response within 3 months of letter acknowledging claim
Pre-Action Protocol for Personal Injury Claims - 6th step (only if defendant denies liability or quantum or both)
The parties disclose key documents, engage in appropriate negotiations and proposals for settlement; claimant sends schedule of losses
Pre-Action Protocol for Personal Injury Claims - 7th step (only if defendant denies liability or quantum or both)
Joint selection of quantum expert, or claimant discloses report and defendant sends written questions
What is the first thing a solicitor should consider at the pre-action stage?
- Whether a claim is limitation barred.
What should a potential claimant do at first instance to comply with the CPRS
Should send a Letter Before Claim to the potential defendant
potential defendant should reply with a reasonable time (no more than three months in most cases)
What are the Letter Before Claim requirements?
- Must be a genuine attempt to settle
- should state the basis of the claim, have a summary of facts and state what the claimant wants
- key documents must be disclosed
- if not included, the potential D can challenge the letter
- party’s silence or negative response to a Letter Before Claim or ADR proposal may be considered unreasonable
- aggression or silence may lead to cost sanctions
- purpose of PDPAC is to encourage early settlement and ensure smooth litigation
What should costs of pre-action conduct be like?
Minimal, should only take reasonable and proportionate steps + they cannot recover any disproportionately high costs incurred in doing so
Pre action conduct: can a court order pre-action disclosure for an interim application
Yes, the court can order pre-action disclosure and/or pre-action inspection of property
any order is subject to the court’s discretion
applicant must demonstrate something out of the ordinary , if it is to persuade the court to make an order
Is it possible to make a Part 36 settlement offer during the pre-action phase?
Yes, Part 36 offers to settle can be made by both a claimant and a defendant in a dispute, at any stage of a dispute before or after proceedings have commenced and in appeal proceedings.
When should a claim be commenced in the County Court?
If the claim is for £100,00 or less, it should be commenced in the County Court
Claims for less than this are brought in the High Court in London
When should a claim be commenced in the High Court?
How long does a claimant have to issue the claim form once issued
4 months
How long does a claimant have to issue proceedings in a civil matter
6 years
Deemed service and the claim form
A claim form is deemed served on the second business day after completion of the “relevant
step” (CPR 6.14).
Business day’ means any day except Saturdays, Sundays, bank holidays, Good Friday or Christmas day (CPR 6.2).
The relevant step relates to the step necessary to effect service by each particular method and this is explained in the section above on service. By way of example, when serving by post, the ‘relevant step’ is posting the claim form.
Deemed service of documents other than the claim form
Instant methods (personal service, fax, email, delivering/leaving at a permitted address.
If done before 4.30pm on a business day: deemed served the same day.
Otherwise: deemed served the next business day
Not-instant methods (Post / DX) Deemed served second day after posting / giving to DX
provider, if a business day.
Otherwise: deemed served the next business day
