Pre-Action Protocols Flashcards
Pre-action protocol
A set of prescribed steps which should be followed in certain types of claim before a party issues a claim at court
Each protocol contains (7)
Template for LOC, template for LOR, guidelines to provide pre-action information, guidelines for pre-action disclosure, guidelines to instruct single expert, guidelines to try ADR, a suggested bar on starting proceedings until a certain period has elapsed from the sending of the initial LOC
PDPACP states that the parties should comply with the terms of an approved protocol-
In substance, meaning that whenever practically possible
A failure of one party to engage with a PAP-
Does not justify the other party no longer seeking to comply with the spirit of the protocol
Ways in which courts can enforce PAPs (once litigation has commenced) (6)
Staying the proceedings until steps have been taken; relieving the parties of the obligation to comply; penalising the non-complying party in costs; same but on an indemnity basis; depriving the non-compliant claimant of interest or lower interest rate; making the interest higher if defendant didn’t comply
In deciding whether to impose a sanction-
The court will look at the overall level of compliance
Situations in which it may be appropriate to not comply with PAPs (3)
Where limitation is close; where it’s an injunction; where the proposed defendant may attempt to issue proceedings abroad to avoid the jurisdiction of England and Wales
Purpose of PDPACP
To enable parties to settle the issue between them without the need to start proceedings and to support the efficient management by the court and the parties of proceedings that cannot be avoided
What should the LOC include?
Basis on which the claim is made; clear summary of the facts, what the claimant wants from the defendant, an explanation of how loss calculated, essential documents, ADR paragraph, deadline for a response, request for documents, reference to PDPCAP, threat of issuing proceedings
What should the LOR include?
Acceptance/non-acceptance of claim; intention to counterclaim; reasons for non-acceptance; defendant’s version of events if alleged claimant’s blame; response to ADR; list of documents relied on; enclose copies of documents requested by claimant; request for documents
When does the RPA protocol apply?
Claim arises from a road traffic accident and the value is between £1,000 and £25,000
When does the EU/PL protocol apply?
Claim arises from an accident or disease arising out of a breach of a statutory duty or common law duty of care and the value is between £1,000 and £25,000
In low value protocols, what do the parties do instead of exchanging initial letters?
They complete forms online and submit them electronically via a website known as the Portal
Stage 1
Initial steps to be taken - get RN, complete Claim Notification Form, send it to insurer via Portal and defendant via post, then 15 days for defendant’s insurer to either admit liability or deny it, if admitted insurer must pay fixed Stage 1 costs
When does a claim fall out of the Portal?
Liability denied, insurer fails to respond to the CNF, contributory negligence alleged other than not wearing of a seat belt, CNF incomplete, claim overvalued, Stage 1 costs not paid on time
Stage 2
Only when liability admitted, claimant obtains a fixed costs medical report and submits a Stage 2 settlement pack (amount, medical report, evidence of monetary loss, evidence of disbursements), then insurer 15 days to return or make a counter offer after which 20 days in which parties negotiate, if not successful a court proceedings pack prepared and served, within 15 days costs of Stage 1 and 2 to be paid
Stage 3
Occurs when liability admitted but no settlement as to quantum, here claimant issues CPR Part 8 proceedings under PD 8B, both parties can request an oral hearing, defendant will have to pay within 14 days damages, Stage 3 costs and any outstanding dibs
If CNF incomplete?
Formal LOC prepared to start the PI process
What is the PI protocol for?
PI claims likely to be allocated to fast track and claim which exit the low-value protocol
What steps are recommended in the PI protocol?
Early contact, LOC, LOR, investigations and disclosure, schedule of past and future loss and expense, experts
If the claim moves from the low-value protocol to PI protocol, are costs fixed?
No if allocated to multi-track
Why is the claimant encouraged to contact the prospective defendant in PI protocol?
To advise that investigations are under way and give as much detail as possible at this stage
How is the early contact done?
Via a letter of notification which may suggest ADR
What information should be contained in the LOC in the PI protocol?
Enough to enable the defendant to investigate the proposed claim and put a broad valuation on it - clear summary of the facts, an indication of the nature of injuries, the name and address of hospital, hospital’s reference number, an indication of other financial losses
What other information should be contained in the LOC in the PI protocol?
Confirmation of who you’re acting for, a request to identify the name of insurer, police report info, documents, 21 days to acknowledge
If there is no reply within 21 days in PI protocol-
The claimant can issue proceedings at court
If the PI claim is acknowledged in time-
The defendant has a maximum of 3 months to make any enquiries and generally investigate the claim
How much time for a full reply to a PI LOC?
3 months and 21 days
When to prepare and serve a schedule of past and future loss and expense?
ASAP, can be with a LOC
Procedure for instructing an expert under the PI protocol
The party wishing to do so should give the other party a list with CVs, within 14 days the other party can object to one or more and should instruct a mutually acceptable expert, if all objected to the parties may instruct their own experts (costs consequences if unreasonable), if no objection to a nominated expert the opponent will not be entitled to rely on their own unless the other party agrees, the court directs or the first party’s expert jas been amended with no disclosure
Clarification
Either party may send written requests to clarify the issues in the report within 28 days
To which cases does the Pre-Action Protocol for Debt Claims apply?
Only applies to businesses which are claiming debt of an individual
Purposes of the debt protocol
Encourage early settlement, facilitate resolution, encourage parties to behave in a reasonable and proportionate manner, enable any proceedings to be managed efficiently
Enclosures to a debt LOC
Statement of debt owed to date including any interest accrued, if no SOA the interest due and any admin charges due, a copy of the information sheet and the reply form, a financial statement
If the creditor intends to issue court proceedings, they should-
Give 14 days’ notice
Deadline in debt LOC
30 days
If the debtor indicates they are seeking debt advice-
Additional 30 days should be allowed
