Pre-action Protocols

Question 1

Where to find

Answer 1

Back of book, page 505
Pre-action Conduct Practice Direction
+
Professional Negligence Pre-action protocol

Question 2

Purpose of pre-action protocols

Para 3 PD

Answer 2

• Understand & properly identify issues in dispute in
  proposed claim and share information & relevant
  documents;
• Make informed decisions as to whether & how to proceed;
• Try to settle the dispute without proceedings and/or narrow the issues in dispute;
• Avoid unnecessary expense & minimise costs of resolving the dispute
• Support the efficient management of proceedings where proceedings cannot be avoided.

Question 3

PD (for claims not covered by specific protocol)

GENERAL PRINCIPLES

Answer 3

• Parties should exchange sufficient information to allow them to understand each other’s position and make informed decisions about settlement;
• Appropriate steps to settle / try ADR;
• Parties should act reasonably and proporionately in complying - proportionate to complexity of case and amount at stake etc. - not to be used as tactical device;
• Claimant should send Letter before Claim;
• Defendant should respond within reasonabke period;
• Proceedings should not be started whilst settlement being explored - court may require evidenec that the parties have considered ADR.

Question 4

Courts’ approach to non-compliance with pre-action protocol

Answer 4

Up to the court to decide if non-compliance warrants adverse consequences.

Will take into account when:

• Giving directions
• Making cost orders

Court will look if party has complied with protocol in substance, and will not be concerned with minor or technical infringements, especially where matter is urgent (e.g. when seeking injunction).
+ proportionality to claim itself.

Might be non-compliance if:

• party did not provide sufficient information to enable objectives of protocol;
• did not act within time limits;
• unreasonably refused ADR or failed to respond to an invitation to do so.

Court can then:

• relieve parties from obligation to comply;
• stay proceedings while steps are taken to comply;
• apply sanctions.

Question 5

Sanctions for non-compliance

Answer 5

Order that:

• party at fault pays other side’s costs, or part;
• party at fault pays those costs on an indemnity basis;
• if Claimant is at fault, deprive of interest for a specified period or award at a lower rate;
  if Defendant is at fault, award interest for a specified period at a higher rate (not > 10% above base rate).