Pre-action considerations and steps

Question 1

When does the Pre-action Protocol for Personal Injury Claims apply

Answer 1

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

Question 2

What relevance does the Pre-action Protocol for Personal Injury Claims have to cases above £25,000

Answer 2

The ‘spirit’ of the protocol should be followed

Question 3

Pre-Action Protocol for Personal Injury Claims - 1st step

Answer 3

Claimant should write a Letter of Notification to potential defendant giving brief details, to enable defendant to notify its insurer

Question 4

Pre-Action Protocol for Personal Injury Claims - 2nd step

Answer 4

Parties consider any rehabilitation needs (i.e. any ongoing medical and care needs) and how to address them

Question 5

Pre-Action Protocol for Personal Injury Claims - 3rd step

Answer 5

Claimant should write to the defendant to give full details of the claim (Letter of Claim)

Question 6

Pre-Action Protocol for Personal Injury Claims - 4th step

Answer 6

Defendant to acknowledge Letter of Claim within 21 days

Question 7

Pre-Action Protocol for Personal Injury Claims - 5th step

Answer 7

Defendant to investigate and send full Letter of Response within 3 months of letter acknowledging claim

Question 8

Pre-Action Protocol for Personal Injury Claims - 6th step (only if defendant denies liability or quantum or both)

Answer 8

The parties disclose key documents, engage in appropriate negotiations and proposals for settlement; claimant sends schedule of losses

Question 9

Pre-Action Protocol for Personal Injury Claims - 7th step (only if defendant denies liability or quantum or both)

Answer 9

Joint selection of quantum expert, or claimant discloses report and defendant sends written questions

Question 10

What is the first thing a solicitor should consider at the pre-action stage?

Answer 10

• Whether a claim is limitation barred.

Question 11

What should a potential claimant do at first instance to comply with the CPRS

Answer 11

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)

Question 12

What are the Letter Before Claim requirements?

Answer 12

• 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

Question 13

What should costs of pre-action conduct be like?

Answer 13

Minimal, should only take reasonable and proportionate steps + they cannot recover any disproportionately high costs incurred in doing so

Question 14

Pre action conduct: can a court order pre-action disclosure for an interim application

Answer 14

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

Question 15

Is it possible to make a Part 36 settlement offer during the pre-action phase?

Answer 15

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.

Question 16

When should a claim be commenced in the County Court?

Answer 16

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

Question 17

When should a claim be commenced in the High Court?

Question 18

How long does a claimant have to issue the claim form once issued

Answer 18

4 months

Question 19

How long does a claimant have to issue proceedings in a civil matter

Answer 19

6 years

Question 20

Deemed service and the claim form

Answer 20

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.

Question 21

Deemed service of documents other than the claim form

Answer 21

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