Pre-Action Protocols and Applications

Question 1

If no specific protocols exist, what should litigant’s do before taking court action?

Answer 1

(1) C writes to D with details of the claim

(2) D responds within a reasonable time, either confirming that the claim is accepted or giving the reasons why it is not (14 days to 3 months, depending on the complexity of the case)

(3) Parties disclose key documents relevant to the dispute

(4) Parties consider using a single, joint expert if appropriate.

(5) Parties must consider ADR. Court will check if this has been done and may penalize a party for unreasonably rejecting it.

(6) If ADR not successful, parties to take stock of their positions before commencing court action.

Question 2

What is the PI protocol?

Answer 2

(1) Letter of claim
- Factual summary, injuries sustained, impact on C, hospital attended, known financial losses

(2) D’s response within 21 days.
- If yes, D has 3 months to investigate
- If not, C can start proceedings.

(3) Disclosure of documents

(4) Experts
- Consider joint experts
- C sends list to D who has 14 days to disagree. Then they can choose their own.

(5) If settlement not achieved, C can issue proceedings

Question 3

When is the PI protocol used?

Answer 3

Mainly for fast track claims (up to £25k), but it should still be followed if it is in another track.

NOTE: Does not apply to criminal negligence

Question 4

Consequences of failing to adhere to the pre-action protocol.

Answer 4

Sanctions
- Pay costs of the other party
- C doesn’t get to claim interest
- D needs to pay interest at a higher rate

Stay in proceedings to allow the protocol to be followed.

Question 5

When is it appropriate to not adhere to the pre-action protocols?

Answer 5

End of limitations period is close

Court order is required to preserve evidence

When D may seek to avoid the jurisdiction of England and Wales by filing a claim in another country

Question 6

What are common pre-action applications?

Answer 6

(1) Pre-action disclosure of documents from the other side if necessary to investigate a potential claim fully.
- Can be made to a non-party

(2) Pre-action inspection of property, if it is the subject matter of, or relevant to the issues in, the proceedings

Question 7

If D complies with the protocols but C nevertheless commences an action against them, can D recover any costs from C?

Answer 7

Generally no, unless C is sanctioned for some reason