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Civil Litigation > Pre Action Protocols > Flashcards

Pre Action Protocols Flashcards

1
Q

What are the aims of the Practice Direction on Pre-Action Conduct? (PD 1.1)

A
  1. Enable parties to settle the issue between them without the need to start proceedings (that is, a court claim); and
  2. Support the efficient management by the court and the parties of proceedings that cannot be avoided.
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2
Q

What are the primary ways that the Practice Direction on Pre-Action Conduct seeks to achieve it’s aims? (PD 1.2)

A

By encouraging the parties to –

  1. Exchange information about the issue, and
  2. Consider using a form of Alternative Dispute Resolution (‘ADR’)
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3
Q

What are some factors the Court may take into account when assessing compliance under PD 4?

A
  1. Whether the parties have “complied in substance with the relevant principles and requirements”
  2. The proportionality of the steps taken compared to the size and importance of the matter;
  3. Considering the urgency of the matter. Where a matter is urgent (for example, an application for an injunction) the court will expect the parties to comply only to the extent that it is reasonable to do so.
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4
Q

What are four examples of non compliance listed in the Pre Action Conduct Practice Direction 4.4?

A
  1. Not providing sufficient information to enable the other party to understand the issues;
  2. Not acting within a time limit set out in a relevant pre-action protocol, or, where no specific time limit applies, within a reasonable period;
  3. Unreasonably refusing to consider ADR
  4. Without good reason, not disclosed documents requested to be disclosed.
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5
Q

True or false:

PD 4.5 The court will look at the overall effect of non-compliance on the other party when deciding whether to impose sanctions.

A

True

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6
Q

True or false:

The court will not stay proceedings but will instead make an order for costs.

(PD 4.6(1)

A

False- the Court may both stay proceedings and make an order for costs on an indemnity basis.

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7
Q

According to the Practice Direction on Pre Action Conduct what should a claimant do to start proceedings?

(PD 7.1(1))

A

The claimant should set out the details of the matter in writing by sending a letter before claim to the defendant.

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8
Q

According to the Practice Direction on Pre Action Conduct what should a defendant do when they receive a letter before action?

(PD 7.1(2))

A

The defendant should give a full written response within a reasonable period, preceded, if appropriate, by a written acknowledgment of the letter before claim.

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9
Q

Where the matter is straightforward, for example an undisputed debt, then a full response should normally be provided within 30 days. True or false?

(PD 7.2(2))

A

False- where the matter is straightforward, for example an undisputed debt, then a full response should normally be provided within 14 days;

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10
Q

Where the matter is particularly complex, for example requiring specialist advice, then a period of longer than 30 days will always be appropriate. True or false?

(PD 7.2(3)

A

False. Where the matter is particularly complex, for example requiring specialist advice, then a period of longer than 30 days may be appropriate;

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11
Q

A period of longer than 90 days in which to provide a full response will only be considered reasonable in exceptional circumstances. True or false?

(PD 7.2(5))

A

True

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12
Q

The obligation to consider settlement only applies before a claim has formally been launched. True or false?

(PD 8.4)

A

False

The parties should continue to consider the possibility of reaching a settlement at all times. This still applies after proceedings have been started, up to and during any trial or final hearing.

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13
Q

Where no pre action protocol exists- what details should be included in a letter before claim according to the Practice Direction on Pre Action Conduct? (PD Annex A)

A
  1. The claimant’s full name and address;
  2. The basis on which the claim is made (i.e. why the claimant says the defendant is liable);
  3. A clear summary of the facts on which the claim is based;
  4. What the claimant wants from the defendant; and
  5. If financial loss is claimed, an explanation of how the amount has been calculated.
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14
Q

Starting proceedings should usually be a step of last resort, and proceedings should not normally be started when a settlement is still actively being explored. However, the Court will not investigate prior conduct by the parties before a claim has commenced.

True or false?

(PD 4.4(3))

A

False

The court may require evidence that the parties considered some form of ADR.

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15
Q

Commencing a claim should be a “last resort” according to PD 8.1. True or false?

A

True

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16
Q

Failing to send a pre action letter at all is unreasonable conduct and may attract a sanction; though only in extreme circumstances according to Phoenix Finance v Federation International. True or false?

A

False. Failing to send a pre action letter will “invariably” attract a sanction according to the White Book.

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17
Q

The protocols are “codes of best practice”; they do not need to be followed slavishly, but any divergence must be reasonable. True or false?

A

True

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18
Q

How long does a defendant have to respond and investigate in a personal injury or clinical negligence case?

A

3 months

19
Q

What should a defendants’ response to a pre action letter do?

A
  1. Either accept or deny the claim

2. Set out detailed reasons why a claim is denied.

20
Q

Letters of claim are not intended to have the same status as statements of case and therefore changes can be made after they are sent without penalty. True or false?

A

False. While letters before action aren’t supposed to have the same status as statements of case - if parties make substantial changes this could be “unreasonable conduct” and incur a penalty.

21
Q

If the limitation period is running out and there is not enough time to go through all of the protocols - what should the Claimant do?

A

Protect the clients’ position by issuing proceedings and then delay serving the claim form while the protocol is followed. Alternatively, invite the Court to stay proceedings after they have been issued.

22
Q

The CPR enables the Court to take into account compliance when giving direction for the management of proceedings. The Court may make an order for a party to pay a sum of money into court if that party has failed to comply with the appropriate rule. True or false?

A

True.

23
Q

If non-compliance leads to proceedings being commenced which otherwise would not have been necessary- what rule will the Court try to apply?

A

The Court will “try to put the innocent party in the position they would have been in if they protocol had been complied with”.

24
Q

What is the test for whether disclosure of a document is necessary?

A

Is the document necessary to “dispose fairly of the anticipated proceedings, to assist the dispute to be resolved without proceedings, or to save costs”

25
Q

The Pre Action Protocol for Personal Injury only applies if the claim is for personal injury alone. If there is a part of the claim for property damage or breach of conduct- the protocol will not apply. True or false?

A

False.

The protocol is intended to apply to all claims which include a claim for personal injury (except those claims covered by the Clinical Disputes and Disease and Illness Protocols) and to the entirety of those claims: not only to the personal injury element of a claim which also includes, for instance, property damage

26
Q

What does the personal injury protocol suggest should be undertaken with regards to experts?

A

The protocol suggests join selection of experts to save costs.

27
Q

If a party wishes to instruct an extra expert- what will the position on costs be?

A

The Court would consider whether this was necessary and may rule that the additional experts’ costs should not be recoverable.

28
Q

The protocols and PD all determine that litigation should be a last resort and according to Sir Rupert Jackson “no case should come to trial without the parties having undertaken some form of ADR”. True or false?

A

True

29
Q

Name all the pre action protocols

A
  1. Personal Injury
  2. Clinical Disputes
  3. Construction and Engineering
  4. Defamation
  5. Professional Negligence
  6. Judicial Review
  7. Disease and Illness
  8. Housing Disrepair
  9. Possession Claims based on rent arrears
  10. Possession Claims based on Mortgage Arrears etc.
  11. Dilapidations (commercial property)
30
Q

Which of these is not a pre action protocol?

A

Disease and Illness
Health and safety disputes
Construction and Engineering

31
Q

What is Annex B of the Practice Direction on Pre Action Conduct?

A

Guidance on debt claims where the claimant is a business and the defendant is an individual

32
Q

What is Annex A of the Practice Direction on Pre Action Conduct?

A

Guidance on pre-action procedure where no pre-action protocol or other formal pre-action procedure applies

33
Q

What is Annex C of the Practice Direction on Pre Action Conduct?

A

Guidance on instructing experts

34
Q

Guidance on pre-action procedure where no pre-action protocol or other formal pre-action procedure applies.

Which Annex of the Practice Direction on Pre Action Conduct?

A

Annex A

35
Q

How quickly after the posting of the letter of claim should a defendant reply to it identifying the insurer?

A

21 days

36
Q

How long after posting may a claimant issue a claim if the letter before claim hasn’t been replied to?

A

21 days

37
Q

Under the pre action protocol on personal injury - where the defendant’s insurers will have a maximum of Z months from the date of acknowledgment of the claim to investigate. No later than the end of that period the defendant (insurer) shall reply, stating whether liability is denied and, if so, giving reasons for their denial of liability including any alternative version of events relied upon.

What is Z?

A

Z is three months

38
Q

Under the pre action protocol on personal injury where the accident occurred outside England and Wales and/or where the defendant is outside the jurisdiction, the time periods of 21 days and 3 months should normally be extended up to X days and Y months.

What is X and what is Y?

A

X is 42 and Y is 6 months

39
Q

Under the pre action protocol on personal injury where the defendant admits liability in whole or in part, before proceedings are issued, any medical reports obtained under this protocol on which a party relies should be disclosed to the other party. The claimant should delay issuing proceedings for P days from disclosure of the report (unless such delay would cause his claim to become time-barred), to enable the parties to consider whether the claim is capable of settlement.

What is P?

A

21 days

40
Q

Under the pre action protocol on personal injury the Claimant knows that the Defendant has an insurer and knows the identity- should letter before action be sent to the insurer or only the defendant?

A

The letter before claim should be sent to the insurers also

41
Q

Under the pre action protocol on personal injury- before any party instructs an expert he should give the other party a list of the name(s) of one or more experts in the relevant speciality whom he considers are suitable to instruct. True or false?

A

True

42
Q

Where one party names an expert to be instructed - within how many days must the other party indicate an objection to one or more of the named experts?

A

14

43
Q

What are the five listed sanctions for non compliance in the Personal Injury Pre Action Protocol?

A
  1. A stay while pre action protocol is complied with.
  2. An order that the party at fault pays the costs.
  3. An order that the party at fault pays the costs on an indemnity basis. .
  4. Depriving the claimant party of the interest on their damages (if the claimant was at fault)
  5. Awarding damages at a higher rate if it is the defendant who is at fault.

Civil Litigation (23 decks)

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