Pre-Action Protocols

Question 1

Pre-action protocol

Answer 1

A set of prescribed steps which should be followed in certain types of claim before a party issues a claim at court

Question 2

Each protocol contains (7)

Answer 2

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

Question 3

PDPACP states that the parties should comply with the terms of an approved protocol-

Answer 3

In substance, meaning that whenever practically possible

Question 4

A failure of one party to engage with a PAP-

Answer 4

Does not justify the other party no longer seeking to comply with the spirit of the protocol

Question 5

Ways in which courts can enforce PAPs (once litigation has commenced) (6)

Answer 5

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

Question 6

In deciding whether to impose a sanction-

Answer 6

The court will look at the overall level of compliance

Question 7

Situations in which it may be appropriate to not comply with PAPs (3)

Answer 7

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

Question 8

Purpose of PDPACP

Answer 8

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

Question 9

What should the LOC include?

Answer 9

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

Question 10

What should the LOR include?

Answer 10

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

Question 11

When does the RPA protocol apply?

Answer 11

Claim arises from a road traffic accident and the value is between £1,000 and £25,000

Question 12

When does the EU/PL protocol apply?

Answer 12

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

Question 13

In low value protocols, what do the parties do instead of exchanging initial letters?

Answer 13

They complete forms online and submit them electronically via a website known as the Portal

Question 14

Stage 1

Answer 14

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

Question 15

When does a claim fall out of the Portal?

Answer 15

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

Question 16

Stage 2

Answer 16

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

Question 17

Stage 3

Answer 17

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

Question 18

If CNF incomplete?

Answer 18

Formal LOC prepared to start the PI process

Question 19

What is the PI protocol for?

Answer 19

PI claims likely to be allocated to fast track and claim which exit the low-value protocol

Question 20

What steps are recommended in the PI protocol?

Answer 20

Early contact, LOC, LOR, investigations and disclosure, schedule of past and future loss and expense, experts

Question 21

If the claim moves from the low-value protocol to PI protocol, are costs fixed?

Answer 21

No if allocated to multi-track

Question 22

Why is the claimant encouraged to contact the prospective defendant in PI protocol?

Answer 22

To advise that investigations are under way and give as much detail as possible at this stage

Question 23

How is the early contact done?

Answer 23

Via a letter of notification which may suggest ADR

Question 24

What information should be contained in the LOC in the PI protocol?

Answer 24

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

Question 25

What other information should be contained in the LOC in the PI protocol?

Answer 25

Confirmation of who you’re acting for, a request to identify the name of insurer, police report info, documents, 21 days to acknowledge

Question 26

If there is no reply within 21 days in PI protocol-

Answer 26

The claimant can issue proceedings at court

Question 27

If the PI claim is acknowledged in time-

Answer 27

The defendant has a maximum of 3 months to make any enquiries and generally investigate the claim

Question 28

How much time for a full reply to a PI LOC?

Answer 28

3 months and 21 days

Question 29

When to prepare and serve a schedule of past and future loss and expense?

Answer 29

ASAP, can be with a LOC

Question 30

Procedure for instructing an expert under the PI protocol

Answer 30

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

Question 31

Clarification

Answer 31

Either party may send written requests to clarify the issues in the report within 28 days

Question 32

To which cases does the Pre-Action Protocol for Debt Claims apply?

Answer 32

Only applies to businesses which are claiming debt of an individual

Question 33

Purposes of the debt protocol

Answer 33

Encourage early settlement, facilitate resolution, encourage parties to behave in a reasonable and proportionate manner, enable any proceedings to be managed efficiently

Question 34

Enclosures to a debt LOC

Answer 34

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

Question 35

If the creditor intends to issue court proceedings, they should-

Answer 35

Give 14 days’ notice

Question 36

Deadline in debt LOC

Answer 36

30 days

Question 37

If the debtor indicates they are seeking debt advice-

Answer 37

Additional 30 days should be allowed