Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Unit 9 > Pre Action Protocols > Flashcards

Pre Action Protocols Flashcards

1
Q

What are pre-action protocols?

A

Rules annexed to CPR which must be followed prior to issuing proceedings. They explain the conduct and steps parties are expected to take.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is the aim of pre-action protocols?

A

To maximise exchange of information to either settle the matter or streamline the subsequent litigation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What cases are pre-action protocols used in?

A

Debt, personal injury, professional negligence and some RTAs.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What are the four general objectives of pre-action protocols?

A

encourage early exchange of full information / enable settlement to avoid litigation / efficiently manage proceedings / ensure costs incurred are proportionate to the claim

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What can happen if a party doesn’t comply with pre action protocols?

A

They may face costs sanctions.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What are the 3 Personal Injury Protocols and what do they apply to?

A

Personal Injury Protocol for pi claims over £25k or where claim leaves original protocol / RTA Protocol pi claims in RTAs under £25k / EL/PL Protocol for low value employer’s liability and public liability claims under £25k

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What five key pieces of information are required for a personal injury claim to help ascertain the value of the claim?

A

Circumstances of accident (date, time, location, witnesses etc) / were police called, are there any criminal proceedings / what injuries there are and any treatments for them / any financial losses / any social security benefits claimed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What is the main aim of the RTA Protocol?

A

To ensure claimants receive the compensation they are entitled to quickly and cost effectively.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

In which 3 ways does the RTA Protocol try to achieve its aim?

A

clear and rigid timetable to stop delays / fixed costs to limit disputes and what lawyers charge / process conducted via electronical portal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Summarise stage 1 of the RTA Protocol

A

Early notification of claim to the defendant and insurer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What happens if liability is denied at stage 1 of RTAP?

A

The claim exits the protocol

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What happens if liability is admitted at stage 1 of RTAP?

A

Fixed costs from stage 1 must be paid within 10 days and the claim moves to stage 2

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What happens if liability is admitted but contributory negligence is alleged at stage 1 of RTAP?

A

The claim exits the protocol

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Summarise stage 2 of the RTA Protocol

A

Obtaining and serving medical evidence. Settlement offers are made and negotiation may take place. Most claims will settle at this stage and the claimant is paid quickly.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What happens if no settlement is reached at stage 2 of the RTA Protocol?

A

The claim moves to stage 3

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Summarise stage 3 of the RTA Protocol

A

Court involvement where settlement is not agreed between parties.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is the EL/PL Protocol (for low value employer liability and public liability claims)?

A

Applies to EL and PL claims up to £25k, it has similar steps and stages to RTA Protocol with slightly different timescales. It has a similar ‘portal’ process and fixed fees.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What are the costs for cases with damages of £0-£10k in the RTA Protocol?

A

£200 at S1, £300 S2, £250 paper/£500 oral S3

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What are the costs for cases with damages of £10k+ to £25k in the RTA Protocol?

A

£200 at S1, £600 S2, £250 paper/£500 oral S£

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What are the costs for cases with damages of £0-£10k in the EL/PL Protocol?

A

£300 at S1, £600 S2, £250 paper/£500 oral S3

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What are the costs for cases with damages of £10k+ to £25k in the EL/PL Protocol?

A

£300 at S1, £1,300 S2, £250 paper £500 oral S3

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

In which 4 ways can a claim leave the RTA or EL/PL Protocol?

A

if liability is disputed, including allegations of contributory negligence / if value exceeds £25k / allegation of fraud / def insurer does not meet stage 1 timescales

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What happens when a claim leaves the RTA Protocol?

A

It is pursued under the PI Protocol and the CNF is treated as a letter of claim. Fixed costs will still apply unless it goes to the multi track

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What does the Personal Injury Protocol set out as step 1 before issue of proceedings?

A

Claimant may send an informal letter to the defendant or their insurer to inform them of the claim. This will not trigger the timetable.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What does the Personal Injury Protocol set out as step 2 before issue of proceedings?

A

As soon as there is sufficient info to substantiate a claim, two copies of a letter of claim should be sent to the defendant.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What does the Personal Injury Protocol set out as step 3 before issue of proceedings?

A

Defendant must reply to the letter of claim (within 21 days) naming any insurer. This is an acknowledgement and not a full response which triggers the 3 month investigation period. Failure to respond will justify issue of proceedings without further protocol compliance.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What does the Personal Injury Protocol set out as step 4 before issue of proceedings?

A

The defendant has a three month period to investigate the claim, outline their version of events with relevant docs, and state if liability is denied and on what grounds.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What does the Personal Injury Protocol set out as step 5 before issue of proceedings?

A

If contributory negligence is alleged, the claimant should respond to this before issuing proceedings.

29
Q

What does the Personal Injury Protocol set out as step 6 before issue of proceedings?

A

Claimant’s solicitor sends schedule of losses and expenses as soon as possible together with supporting docs

30
Q

What does the Personal Injury Protocol set out as step 7 before issue of proceedings?

A

Medical evidence should be obtained, encouraged to be by a jointly selected expert

31
Q

What does the Personal Injury Protocol set out as step 8 before issue of proceedings?

A

Negotiation between parties is encouraged

32
Q

What 5 things should be included in a letter before claim sent under the PI Protocol?

A

Clear summary of facts / nature of injuries / details of any financial losses claimed / invitation to meet needs of rehabilitation for any ongoing injuries / what docs def should disclose

33
Q

What happens if a party fails to comply with the pre-action protocol?

A

If they don’t comply through slackness or deliberate flouting then the court may penalise them in costs. If they have a rational justification for non compliance then there will not be adverse consequences.

34
Q

If a claimant has been fundamentally dishonest in relation to any element of their personal injury claim, what must the court do?

A

Under s57 Criminal Justice and Courts Act, the court must dismiss the claim (this is mandatory unless the court feels that doing so would mean the claimant suffers substantial injustice).

35
Q

When is the Road Traffic Act 1988 relevant

A

In claims where the defendant is a driver

36
Q

What is compulsory under s143(1) of RTA 1988?

A

For drivers to have insurance for personal injury and consequential loss to third parties

37
Q

What does it mean if an insurer picks up liability in an RTA as “insurer concerned”

A

It means the insurers of a vehicle will still pick up the insurance and compensate a victim in an accident even if the driver was not the person insured on the policy, under s151 RTA 1988. They are only liable to pay out if they are given 7 days notice of proceedings

38
Q

What is the Motor Insurance Bureau (MIB)?

A

A syndicate of insurance companies acting as a safety net for for innocent victims of accidents where the defendant is untraceable or uninsured

39
Q

What are the two agreements the MIB has made with the Ministry of Transport and what do they generally cover

A

The Uninsured Drivers Agreement 2015 and the Untraced Drivers Agreement 2017. They cover personal injury and fatal road accident cases inc. consequential loss and property damage. Proceedings are brought in the usual way and the MIB will pay the judgment obtained.

40
Q

What is the procedure under the Uninsured Drivers Agreement 2015?

A

Claimant applies to MIB with certain information and documents. If the driver is found liable and does not pay for over 7 days, the MIB satisfy the judgment. If the MIB denies liability proceedings will be commenced against both the MIB and the driver

41
Q

What is deleted by the Supplementary Uninsured Drivers Agreement 2017

A

It deletes the exclusion of claims where the claimant’s own vehicle was damaged but they knew or should have known is was uninsured

42
Q

What does the Untraced Drivers Agreement 2017 apply to and what is the procedure?

A

It applies to hit and runs post 1st March 2017 where the driver is untraceable. Proceedings cannot be commenced because the driver is untraceable so the application is made to the MIB on behalf of the innocent victim. The excess is £400 and there are some exclusions (e.g victim chose to be in stolen car)

43
Q

What 4 pieces of information are required in a debt claim?

A

How the debt arose - date of contract, details of payment obligation etc. The contract will be needed as well as any invoice being sued upon / how much exactly is owed / what has happened since debt due, any reminders sent, reasons given for non payment / can it be solved by ADR (this must be considered)

44
Q

How should a lawyer check a debtor’s financial standing for LLPs and partnerships/individuals?

A

LLPs - search Companies House for most recent accounts and RCoJ to check that another creditor hasn’t issued winding up proceedings. Partnerships/individuals - check if client has info on assets, seek status report from enquiry agents. A Land Reg search should be conducted to see if debtor owns land and debts secured against it.

45
Q

What claims does the Pre Action Protocol for Debt Claims apply to? (PPDC)

A

any business (inc sole trader and public bodies) bringing a claim against a debtor who is an individual or sole trader but not business to business debts

46
Q

What are the 4 aims of the PPDC?

A

encouraging early communication between parties so all info is known and disputed issues are clarified / to achieve settlement out of court / parties to act reasonably in relation to debt size / to support efficient management of court proceedings if these are necessary.

47
Q

What 4 steps must be followed in the PPDC?

A

Letter of claim to be sent / debtor to use Reply Form to respond within 30 days, can request docs / issues still outstanding post disclosure aim to be resolved considering ADR / if no response or agreement is reached in 30 days then court proceedings are issued

48
Q

What should be included in a letter of claim in debt claims under PPDC?

A

Details of the debt, up to date statement including interest and charges and how to pay. The Standard Reply Form, Information Sheet an Financial Statement protocol forms should also be included.

49
Q

What should parties do before issuing court proceedings in debt claims?

A

Comply with PPDC or face possible costs sanctions. A creditor must wait 30 days from issuing the letter of claim before bringing proceedings, sometimes extra time should be allowed so a debtor can seek legal or debt advice.

50
Q

What does the Practice Direction on Pre Action Conduct and Protocols cover?

A

All other claims outside the protocols, including business to business debts where the debtor is not a sole trader.

51
Q

What are the four main pre-action steps of the Practice Direction on Pre Action Conduct and Protocols?

A

Information exchanged to ascertain position of each party, ADR and settlement is considered / claimant must write to def with details of the claim / def should respond and say whether they accept within 14 days (straightforward cases, up to 3 months for complex) / relevant documents disclosed

52
Q

What part of CPR deals with evidence?

A

Part 32

53
Q

What three things does the court base its orders in relation to evidence?

A

The issues it needs evidence on (liability, quantum) / the nature of the evidence required / the way evidence is required to be given before the court (oral/written etc)

54
Q

What are six key ‘rules’ of Witness Statements (what they should include etc.)

A

Must include formal heading with title of proceedings and witness details in top right / first para should include description of witness and details of occupation where relevant / paras should be numbered and dates in DD MONTH YYYY format / witness should write in first person and own words / documents referred to should be exhibited / must include signed stat of truth

55
Q

When does the Court direct when WS should be exchanged?

A

About 10 weeks after allocation to the fast or multi track, which should be a mutual exchange. Takes place after disclosure and inspection so statements can comment on this.

56
Q

What is a witness summons?

A

Someone who can go to court on behalf of a witness for a fee plus possible travel expenses. They must be served at least 7 days prior to court date and know the witness address

57
Q

What part of CPR governs expert evidence?

A

CPR Part 35

58
Q

What do medical expert reports deal with?

A

Nature of injuries and prognosis

59
Q

What do accountancy expert reports deal with?

A

Assessment of loss in commercial and professional negligence

60
Q

What can expert reports deal with regarding property?

A

Surveying/valuing in property disputes and architect/surveyor reports give evidence in defective building works cases

61
Q

What is the expert’s duty to the court?

A

To help them using their expertise, which overrides any obligation to the person instructing them

62
Q

When can a party call an expert or give expert evidence?

A

only when the court has given permission

63
Q

When deciding whether to permit expert evidence, what three things can the court direct?

A

To restrict the evidence to only evidence required to resolve issues / whether it is written or oral / what issues should be covered and the type of expert

64
Q

What is the general rule for instruction of joint experts in the fast track?

A

The court directs for a joint experts who will send their report simultaneously to each party. The fee is shared

65
Q

What is the general rule for instruction of joint experts in the multi track?

A

It is more common for parties not to have a joint expert and instruct separate experts.

66
Q

Why might the court direct discussion between the parties and what must the parties return with?

A

The court directs it to identify the issues and reach agreement. The parties must provide a statement showing the issues agreed and disagreed with reasons why

67
Q

What is hot tubbing?

A

When all experts from similar areas give evidence at once. The judge will hear evidence on each issue from each expert and may also ask questions and summarise different positions.

68
Q

What five key ‘rules’ must expert’s reports follow (in terms of what is included and how etc)

A

They must be addressed to the court / give details of expert’s qualifications, materials relied on and any tests used / summarise any range in opinion and reasons for their own opinion / include statement setting out instructions and that they comply with court duty / verified by standard form of statement of truth

Unit 9 (9 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions