Pre-action considerations and steps Flashcards
Parties?
and check that they are?
Claimant is the person who makes the claim.
Defendant is the person AGAINST whom a claim is made.
*Traceable – confirm their whereabouts.
*Identify – if an individual, partnership OR body corporate.
*Solvent – bankruptcy search AGAINST individuals/sole traders/partners and search at Companies House for companies/LLPs.
The solicitor MUST establish?
the legal basis of the claim (e.g., contract or tort).
Assess the likelihood of success by?
by reviewing all available evidence.
Identify the issues in dispute AND?
how these are to be proved.
Common causes of action include:
- Breach of contract
- Misrepresentation (contract)
- Negligence and negligent misstatement (tort)
- Nuisance (tort)
Give initial advice as to?
costs, liability, and quantum.
Preliminary considerations – the use of Welsh language in civil proceedings - Practice Direction regarding the use of Welsh language in cases in the civil courts in OR?
having a connection with Wales.
Preliminary considerations – the use of Welsh language in civil proceedings - Practice Direction applies to:
The conduct of hearings in the Welsh language.
Completion of the allocation questionnaire.
Case management directions.
Listing by the court.
The use of interpreters.
The administration of oaths OR affirmations by witnesses AND jurors in Welsh.
claimant MUST comply with the strict time limit when?
issuing proceedings AGAINST a defendant.
Statute barred?
court WILL NOT allow claims to be started outside the limitation period.
Contract -
Date of breach of contract?
6 years
Tort (other than PI and latent damages) -
Date damage occurs?
6 years
Tort (PI) -
Later of – date cause of action occurs, OR date of knowledge of person injured?
3 years
Tort (latent damages) -
Later of – date damage occurs, OR date on which claimant first had knowledge required to bring claim?
6 years from date of damage.
3 years from date of knowledge.
In any event, claim MUST be brought within 15 years from date of negligence.
Before issuing of proceedings, parties MUST comply with?
Pre-Action Protocols.
Pre-Action protocols exist for the following causes of action:
*PI
*Clinical disputes
*Construction/engineering
*Defamation
*Professional negligence
*JR
*Illness and disease
*Housing disrepair
*Possession claims by social landlords
*Possession claims for mortgage arrears.
*Dilapidation of commercial property.
*Low value PI road traffic accidents.
*Low value PI employer’s liability AND public liability claims
Practice Direction on Pre-Action Conduct and Protocols (PDPACP) –
no relevant pre-action protocol exists:
(it is a catch up all protocol).
Pre-Action Protocols and PDPACP encourage the quick resolution of cases without litigation by the early AND fair exchange of information by undertaking the following steps BEFORE issuing of proceedings:
*Parties should consider ADR with a view to settlement.
*Claimant SHOULD write to defendant with concise details of the claim.
*Defendant SHOULD respond within a reasonable time (depends on the complexity of the case)
IF claim is accepted and/or if there is a counterclaim.
*Parties SHOULD disclose key documents relevant to the issues in the dispute.
*Parties SHOULD take steps to narrow issues in dispute.
Consequences for failure to follow pre-action protocols and PDPACP include a court order to:
*Pay the other party’s costs (in full or part).
*Pay the other party’s costs on an indemnity basis.
*Deprive the claimant who has been awarded a sum of money, interest on that sum of money.
*Require the defendant to pay interest (up to 10% above base rate) on any damages awarded.
English courts WILL also generally respect a choice of English Law (or that of another state) known as…
a choice of law OR governing law clause) in the same manner as they did before the UK left the EU.
However, there are certain limitations on the parties’ autonomy to select choice of law/governing law.
In particular:
Mandatory rules of the law of the forum, where the dispute will be heard CAN override the governing law of the parties.
Example, The CRA 2015, UCTA 1977 AND the FSMA 2000 contains provisions which CAN apply to a contract irrespective of its chosen governing law.
Statutory protections enacted for the benefit of presumptively, weak parties, such as consumers OR employees WILL override the parties’ choice of law.
Choice of law CAN be refused if its applications is incompatible with the public policy of the jurisdiction in which the dispute is being heard.
Courts CAN’T uphold the parties’ choice of law IF it’s not considered as bona fide.
Certain jurisdictions, courts CAN refuse the application of a foreign governing law
IF the contract is a purely domestic contract.
The European regime DOESN’T apply to?
proceedings instituted from 1 January 2021, which are instead governed by the common law rules OR the Hague Convention on Choice of Court Agreements, where it applies.
Common law rules apply from?
1 January 2021
Defendant within the jurisdiction of the English Court (physically within England & Wales) AND…
is validly served process, English court has jurisdiction over the defendant.
English courts CAN exercise jurisdiction in the following situations (key common law gateways):
Defendant domiciled in England.
Branch in England (from 1 October 2022).
Injunction to do OR not to do an act in England.
Another party is being sued in England.
Contract made in England, governed by English law OR subject to English jurisdiction.
Breach of contract in England.
Assisting a breach of contract (from 1 October 2022).
Tort claims where damage in England OR resulting from act in England.
Property in England.
Trust governed by English law (from 1 October 2022) OR subject to English jurisdiction.
Breach of fiduciary duty with English connection (from 1 October 2022) AND assisting in a breach of fiduciary duty.
Declaration of non-liability (from 1 October 2022).
Contempt applications (from 1 October 2022).
Information orders AGAINST third parties (from 1 October 2022).
Proceedings can be stayed, or jurisdiction declined if:
There is another more appropriate forum.
Parties agreed to refer to the courts of another country OR to arbitration.
Disputes regarding foreign land OR foreign IP rights.
Proceedings CAN amount to an abuse of the court’s process.
Defendant’s right to contest jurisdiction CAN be waived OR lost by taking a step in the proceedings that is inconsistent with that right AND…
which CAN be seen as constituting a submission to the court’s jurisdiction.
Defendant is outside the jurisdiction AND the claim DOESN’T fall within the specified cases where permission is not required, the claimant MUST?
seek the permission of the court to serve the defendant outside the jurisdiction.
Court WILL exercise jurisdiction over foreign defendants where the subject matter of the dispute has?
a sufficient connection with England.
To obtain such permission, claimant MUST show that all of the following are satisfied:
Claim falls within one of a number of categories OR jurisdictional gateways.
Claim has a reasonable prospect of success.
England is the proper place to bring the claim.
Hague Convention gives effect to an exclusive choice of a court in a contracting state (including the EU, UK, Mexico, Singapore, and Montenegro).
Thus:
The chosen court is obliged to hear the case.
Any other court MUST refuse to hear the case.
Judgment of the chosen court WILL be recognised AND enforced in other states.
No application to agreements choosing a court in a non-contracting state, such as?
the USA.
Jurisdiction agreements can be exclusive OR?
non-exclusive.
Hague Convention only applies to…
exclusive agreements.
