Pre-action Protocols and Practice Direction for Pre-action Conduct and the Overriding Objective

Question 1

what are the Pre-action protocols and Practice Direction for Pre-Action Conduct?

Answer 1

procedures court expects parties to follow BEFORE the issue of proceedings

pre-action protocols = several specific protocols that apply to specific types of disputes

practice direction on pre-action conduct = general directions that applies where there is not a specific protocol

(protocols take priority over PD)

Question 2

what is the purpose of Pre-action protocols and Practice Direction for Pre-Action Conduct? (5)

Answer 2

1- avoiding proceedings where possible

2- conducting more efficient proceedings if they cannot be avoided = limiting issues early, D admitting liability early, D disputing liability early with reasons

3- transparent communication = allowing parties to obtain information reasonably needed to settle early

4- considering ADR early = to avoid proceedings

5- taking stock and not proceeding mechanically

Question 3

what are the consequences of non-compliance with Pre-action protocols and Practice Direction for Pre-Action Conduct? (2)

Answer 3

1- court can impose sanctions of costs/interest payable/damages receivable

2- court can stay proceedings until the relevant steps under the PD/protocol are complied with

but court cannot strike out a claim for non-compliance

Question 4

how is it determined whether a party will face costs sanctions for non-compliance with PD or protocols?

Answer 4

court has discretion to decide whether non-compliance results in adverse consequences and sanctions

court will consider the overall effect of non-compliance by one party on the other party

it is unlikely that sanctions will be imposed for minor infringements (e.g., 2 days late for service of response letter)

court can ask for an explanation for non-compliance

Question 5

what are the 2 main exceptions for non-compliance with the Pre-action protocols and Practice Direction for Pre-Action Conduct?

Answer 5

1) limitation period about to expire

2) proceedings are urgent and an element of surprise is required (freezing order/raid)

Question 6

if a limitation period is about to expire and the claimant does not have enough time to deal with the PD/protocols - what should the C do?

Answer 6

immediately issue proceedings before limitation period expires

then ask D to agree to an application to the court to stay proceedings so that both parties can comply with protocols/PD

Question 7

under the Practice Direction for Pre-action Conduct, how long does D have to respond to a letter of claim sent by C?

Answer 7

‘reasonable time’

response letter must be send within a reasonable time

this depends on the dispute (weeks or months)

Question 8

what are the 3 main requirements under the Practice Direction for Pre-action Conduct?

Answer 8

1) C sends D a LETTER OF CLAIM detailing its claim

2) D must send a RESPONSE LETTER within a REASONABLE TIME accepting or rejecting the claim (giving reasons)

3) parties should disclose key documents, engage in negotiation, and make settlement proposals

Question 9

what is the pre-action conduct for personal injury claims in the relevant protocol? (7)

Answer 9

(1) C writes a letter of notification to D giving brief details to enable D to notify the insurer

(2) parties consider rehab or medical needs and how to address them

(3) C writes letter of claim to D giving full details of claim

(4) D acknowledges the letter of claim within 21 days

(5) D investigates and sends full letter of response within 3 months of acknowledging letter of claim

(6) parties disclose key documents, engage in negotiations, and make settlement proposals - C sends schedule of losses

(7) joint selection of quantum expert (medical expert) OR C discloses report and D sends written questions

Question 10

what is the overriding objective?

Answer 10

to enable the court to deal with the case justly and at proportionate expense

Question 11

what does the overriding objective involve? (7)

Answer 11

1. ensuring that parties are on an equal footing
2. saving expense
3. dealing with the case in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues, and financial positions of each party
4. ensuring the case is dealt with expeditiously and fairly
5. enforcing compliance with the Civil Procedure Rules, practice directions, and court orders
6. allotting to each case an appropriate share of the court’s resources, considering the need to allot resources to other cases
7. parties and witnesses can fully participate in proceedings (court should take proportionate measures to facilitate participation of vulnerable witnesses)

Question 12

who must give effect to the overriding objective? (2)

Answer 12

1. the court = will ACTIVELY manage the case to do so even if parties do not seek court involvement (e.g., encourage cooperation, identifying key issues, making use of technology)

AND

2. the parties = required to help the court further the overriding objective