Pre-Action & Starting a claim

Question 1

What is the aim of the Pre-Action Protocols?

Answer 1

They encourage parties to focus on resolving a dispute without involving the courts.

The pre-action protocols are designed to achieve this by enabling the parties to obtain information they reasonably need to settle a matter at the earliest opportunity and if a settlement is not achievable, lay the foundations for expeditious conduct of proceedings.

Question 2

What are the main CRPs?

Answer 2

Pre-action protocols applying to certain types of disputes

The Practice Direction which covers all cases whether or not a specific protocol applies.

Question 3

What are the consequences of non-compliance?

Answer 3

Stay

Costs

Interest

Question 4

When would non-compliance with pre-actional protocols or Practice Direction be justified?

Answer 4

Where a limitation period is about to expire.

Where there is another reason for urgent proceedings or for the element of surprise.

Question 5

When does the Pre-action protocol for PI claims apply?

Answer 5

a) PI claims

b) which do not fall within another pre-action protocol

c) which are likely to be allocated to fast-track (a value of up to £25,000)

Question 6

When does the Practice Direction apply?

Answer 6

It applies to all cases but where a specific protocol applies, the protocol overrides any conflicting provisions of the PD.

Question 7

What is the pre-action protocol for PI claims?

Answer 7

Claimant should write a Letter of Notification to potential defendant

Parties consider any rehabilitation needs and how to address them

Claimant sends Letter of Claim to defendant

Defendant has 21 days to acknowledge the Letter of Claim

Defendant sends full Letter of Response within 3 months of acknowledging the claim.

The parties should disclose key documents, engage in negotiations and make proposals for settlement. Claimant should send schedule of losses giving details of losses.

Joint selection of quantum expert or claimant discloses report and the defendant asks questions.

Question 8

What is the PD process?

Answer 8

The claimant sends a Letter of Claim

The Defendant must send a Letter of Response within a reasonable period of time either accepting the claim or rejecting the claim and giving reasons.

The parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement.

Question 9

When can claims be heard in the High Court?

Answer 9

If the value of a non-PI claim is more than £100,000; or

If the value of a PI claim is £50,000 or more

Question 10

When MUST claims be issued in the County Court?

Answer 10

If the value of a non-PI claim is £100,000 or less.

If the value of a PI clam is less than £50,000

Question 11

What is the value of a claim?

Answer 11

The value of a claim is it’s financial worth, disregarding:

Costs

Interest

Any counterclaim

Any contributory negligence; and

Any deduction of social security benefits

If a claim form is to be issued in the High Court it must state the claimant expects to recover more than £100,000

Question 12

If there is a choice between bringing the claim in the High Court and County Court, when must a claim be started in the High Court?

Answer 12

If by reason of:

The financial value of the claim, and/or

The complexity of the facts, legal issues, remedies or procedures involved, and/or

The importance of the outcome of the claim to the public,

The claimant believes that the claim ought to be dealt with by a High Court judge.

Question 13

What happens if the court disagree with where the claimant has issued the claim?

Answer 13

The court may transfer cases between the High and County Court and order the claimant to pay the costs of the transfer.

If the matter continues in the High Court, there is a separate sanction for wrongly beginning the matter in the High Court which is any costs awarded can be deducted by 25%. However, this is at the courts discretion.

Question 14

How would a claimant’s solicitors issue the claim at court?

Answer 14

They must take or send the following documents to court:

Copies of the claim form (Form N1) to be issued and sealed:

1 x copy of the completed claim form to be kept on court file;

1 x copy for every defendant; and

1 x copy for the claimant to keep on its own file

Court issue fee (varied depending on the value of the claim)

Question 15

Why is the date of issue of the claim form important?

Answer 15

It is important because it stops time running for limitation purposes and starts the clock for the time in which the claim form must be served.

Question 16

If the documents are sent to the High Court how is the claim issued?

Answer 16

If the documents are sent to the High Court, the court will stamp the covering letter with the date of receipt. This is sufficient to stop time running for limitation purposes.

The documents can be taken in person and issued on the same day.

The court issues the claim form by entering a date of issue, giving the case a claim number and sealing copies of the claim form.

The court then creates a case management file and places its own sealed copy of the claim form on that file.

Question 17

How are money claims in the County Court issued?

Answer 17

Are issued by post to the Civil National Business Centre who manage the claims until a hearing is required, at which point they are transferred to a particular local county court hearing centre.

This is done by sending the claim form (Form N1) to the Civil National Business Centre in Northampton and paying the appropriate issue fee.

Question 18

How are not money-only claims issued in the County Court?

Answer 18

Claims can generally be issued at any of the County Court Hearing Centres by sending in / attending with the claim form (Form N1) and fee.

Question 19

When can Money Claim Online be used?

Answer 19

This service can only be used for money claims with a value of up to £100,000 which are against no more than two defendants.

The claim form is served in the usual way, but the defendant may then respond through the online service.

If the claim is defended, it will be transferred to the appropriate local county court hearing centre.

Question 20

What is the process for people who issue bulk claims?

Answer 20

Users who are going to issue many claims (e.g. utility companies) can become registered users at the County Court Business Centre in Northampton which provides a particular service for such ‘bulk users’.

Question 21

What is service?

Answer 21

Service is the process of giving a document to another party in an action in a way which is recognised by the court.

Question 22

Who can serve a claim form?

Answer 22

It can be served by the court or the claimant/claimant’s solicitor

Question 23

If the court serves the claim form, what is the process?

Answer 23

Service will usually be by first class post

once the court has effected the service, it will send the claimant a notice of issue stating the deemed date of service.

If the court is unable to serve the claim form, the claimant will be sent a notice of non-service. It is then up to the claimant to serve the claim form on the defendant.

Question 24

If the claimant serves the claim form, what is the process?

Answer 24

They must notify the court when issuing the claim form that they wish to serve it.

The court will send the claimant the issued claim form with sealed copies for service on the defendant.

The claimants solicitor must file a certificate of service at court within 21 days of service, certifying details of the date on which the claim form was delivered.

It is not necessary to file a certificate if all the defendants have acknowledged service within that time.

Question 25

What are the methods of service for the claim form?

Answer 25

1. Personal service
2. Leaving the document at the permitted address
3. First class post or DX to the permitted address
4. Fax
5. Other electronic method
6. Any other method authorised by the court

Question 26

When can fax and email be used as a method of service for the claim form?

Answer 26

When the defendant/ its solicitor has indicated it will accept service by this method.

Question 27

What is the place of service for the claim form where personal service is used?

Answer 27

Wherever the defendant is found within the jurisdiction.

Question 28

When must the place of service of the claim form be the defendant’s solicitor’s?

Answer 28

If the defendant gives in writing the solicitors address in the jurisdiction for service, or their solicitor does the same, service MUST be to the solicitor’s address.

Question 29

When must the place of service of the claim form be the defendant’s residential address or place of business?

Answer 29

When the defendant has given this address for the purpose of being served with proceedings.

Question 30

If the defendant does not indicate where service of the claim form should take place what address should be used?

Answer 30

Individual - Usual or last known place of residence.

Individual being sued in the name of a business - usual or last known residence; or principal or last known place of business

Individual being sued in the business name of a partnership - usual or last known place of business of the partnership.

LLP/ company registered in England and Wales - Principal place of the partnership / company; or any place of business of the partnership / company within the jurisdiction that has a real connection with the claim

Question 31

What is the time limit for service of the claim form?

Answer 31

Where the claim form is being served in the jurisdiction, the `relevant step’ to serve the claim form must be completed before midnight on the calendar day four months after the date of issue of the claim form.

Question 32

What is the relevant step in relation to personal service of a claim form?

Answer 32

Leaving the claim form with the defendant

Question 33

What is the relevant step in relation to first class post/DX of a claim form?

Answer 33

Posting the claim form/ leaving it with the DX service

Question 34

What is the relevant step in relation to service via fax?

Answer 34

Completing the transmission

Question 35

What is the relevant step in relation to service via email?

Answer 35

Sending the email

Question 36

When should an application for extension of time to serve the claim form be made?

Answer 36

It should be made within the four month period of validity of the claim form and the claimant will need to show good reasons for extension.

Waiting for further evidence or response from the defendant in relation to pre-action correspondence is unlikely to be a valid reason.

Question 37

When will the court grant an extension of time to serve the claim form after the deadline?

Answer 37

If it is the court that failed to serve the claim form; or

the claimant has taken all reasonable steps to comply; and

either way the application for extension has been made promptly

Question 38

If the particulars of claim are contained in or served with the claim form what must the claimant also serve?

Answer 38

They must serve a response pack which includes:

Form for admission
Form for defending
Form for acknowledging

Question 39

If the particulars of claim are not contained in or served with the claim form when must the claimant serve them?

Answer 39

Within 14 days of service of the claim form and also within the four month validity period.

The particulars should include the response pack.

Once the particulars of claim are served, the claimant must file a copy at court within 7 days of service unless they have already been filed.

Question 40

What are the methods for serving documents other than the claim form?

Answer 40

Personal service

Delivering to or leaving the document at a permitted address

First class post / DX

Fax or other electronic method

In terms of the address for service, when responding to the claim the defendant must give an address at which documents may be served going forwards.

Question 41

What does deemed date of service mean?

Answer 41

It is the date the court considers a document to be served irrespective of the date it was actually received by the recipient.

Question 42

Why is the deemed date of service important?

Answer 42

In relation to the claimant, the time limit for serving the particulars of claim runs from the deemed date of service of the claim form; and

For the defendant, the deadline for serving a response to the claim form runs from the deemed date of service of the claim form

Question 43

When is the deemed date of service of the claim form?

Answer 43

A claim form is deemed served on the second business day after completion of the relevant step.

Business day means any day except Saturdays, Sundays, bank holidays, Good Friday or Christmas day.

Question 44

What is the deemed date of service of the claim form?

Answer 44

A claim form is deemed served on the second business day after the relevant step has been completed.

Business day means any day except Saturday’s, Sundays, bank holidays, good Friday or Christmas day

Question 45

What is the deemed date of service of the particulars of claim?

Answer 45

If the particulars of claim are contained in the claim form, the above rules apply.

If the particulars of claim are attached to or served with the claim form in a separate document and contained in the same envelope, there is ambiguity. However, it is sensible to assume the particulars are deemed served at the earliest possible date.

If the particulars of claim are served separately to the claim form the rules set out below which apply to documents other than the claim form apply

Question 46

What is the deemed date of service of documents other than the claim form?

Answer 46

It varies depending on the method of service chosen.

For instant methods:

If done before 4.30pm on a business day: deemed served the same day

Otherwise: deemed served the next business day

For non-instant methods:

Deemed served second day after posting / giving to DX provider, if a business day.

Otherwise: deemed served the next business day

Question 47

How must every statement of case be set out?

Answer 47

With a formal case heading and statement of truth at the end.

The content must comply with the requirements prescribed by the CPR.

Question 47

What is the purpose of a statement of case?

Answer 47

The claimant sets out the factual basis for their claim and the relief sought.

Question 48

What are the rules applicable to all statements of case?

Answer 48

numbered paragraphs

pages numbered consecutively

all numbers and dates in figures

reference in the margin to every document mentioned that has already been filed at court

the name of the person who drafted the document

statement of truth

Question 49

What is the purpose of a statement of truth?

Answer 49

A party’s statement can only be used as evidence in proceedings if it is signed by a statement of truth.

A statement of truth is a formal way of the person signing confirming that they believe that the document is true.

Question 50

What happens if a statement of case is found to be untrue?

Answer 50

If the document turns out to contain a false statement and the person signing it does not have an honest belief that the statement was true, then proceedings for contempt of court may be brought against the person signing it.

This can lead to sanctions within the proceedings, fines and/or imprisonment.

Question 51

In the claim form what addresses are used?

Answer 51

The parties addresses are the addresses for service, but the claimant must also indicate an address where it resides or carries on business, if different.

Question 52

In the `claim details’ of the claim form what must be included?

Answer 52

A concise statement of the nature of the claim and the remedy sought.

Question 53

If the claim is for money, what must the claimant set out in the `value of claim’ part?

Answer 53

This is a statement of amount claimed. The statement of value can be set out in any one of three ways:

I. Where the amount of the claim is specified, the statement of value can simply state this amount

II. Where the amount of the claim is for an unspecified amount, then the claim form can either have: “less than…, between…and…, or more than…’

III. A statement saying: “I cannot say how much I expect to recover”

Question 54

In a PI claim what must the claimant state in the `value of claim’ section?

Answer 54

The claimant must state whether the amount which the claimant expects to recover for pain, suffering and loss of amenity is or is not more than £1,500.

Question 55

What is a jurisdictional endorsement?

Answer 55

Sometimes the claimant has a choice between County Court and High Court. If the High Court is being chosen, a special jurisdictional endorsement must be included in the claim form. In relation to a claim of money it must:

state that the claimant expects to recover more than £100,000; or

state that some other enactment provides that the claim may be commenced only in the High Court and specify that enactment;

if the claim is a claim for personal injuries state that the claimant expects to recover £50,000 or more; or

state that the claim is to be in one of the specialist High Court lists and state which list.

Question 56

What is the purpose of the particulars of claim?

Answer 56

It sets out the claimant’s case in full detail, as opposed to a brief statement on the front of the claim form which simply sets out the nature of the claim and the remedy sought.

Question 57

What must be included in most particulars of claim?

Answer 57

A concise statement of the facts on which the claimant relies’.

In most cases, the particulars of claim will need to articulate the material facts and allegations showing duty, breach, causation & loss.

It is NOT the purpose of particulars of claim to set out law, evidence or arguments.

Question 58

What is specific content that should be included in a particulars of claim?

Answer 58

o Set out any claim for aggravated damages, exemplary damages and/or provisional damages giving grounds for claiming them.

o In PI cases, claimants date of birth, details of their injuries, attach a schedule of past and future expenses/losses and the report of any expert medical practitioner which is relied on.

o A claim in relation to possession, occupation, use or enjoyment of land, or for an injunction or declaration in relation to land, must identify the land and make clear whether it includes residential premises.

o Where the claim is based on a written agreement, it should be attached

o Where the claim is based on an oral agreement, should set out the words spoken, by whom, to whom, where and when

o Where the claim is based on an agreement by conduct particulars should set out the conduct relied on and state by whom, when and where acts were done.

o Detailed rules relating to past convictions, fraud, illegality, unsoundness of mind

o Any human rights argument relied upon/relief sought

Question 58

If the claimant is seeking interest should it be set out in the particulars of claim?

Answer 58

Yes

Question 59

what are the two legal basis’s for claiming interest?

Answer 59

Set out in the contract between the parties, or

there is a statutory right to interest

Question 60

How can the claimant calculate interest?

Answer 60

Exactly or generally

Question 61

What is an exact calculation of interest?

Answer 61

This method is only used in practice if the claimant is making a specified claim. They would need to set out:

• the applicable percentage rate,
• the dates from which interest is being claimed,
• the total amount claimed up to the issue of the claim form, and

*the daily rate of interest thereafter

Question 62

What is pleading interest generally?

Answer 62

This method is used by the claimant if pursuing an unspecified claim. Certain types of damage will naturally fall into this category:

• loss of goodwill or damage to reputation,
• loss of future earnings or profits, and
• any damages where remoteness, foreseeability and/or mitigation is an issue.

Question 63

Where a claim is partly specified and partly unspecified how do you calculate interest?

Answer 63

You may treat the two claims separately, working out the interest for the specified claim and making a general claim for the unspecified claim.

Alternatively, you may say that the two claims together come to a total which is an unspecified claim and therefore treat the whole claim as an unspecified claim.

Question 64

What are statutory interest claims?

Answer 64

Where the claimant relies on section 35A Senior Courts Act 1981 in the High Court and section 69 County Courts Act 1984 in the County Court, the following principles apply to the award of interest:

Generally, the court has a discretion as to whether to award interest, and how much, from the date the cause of action accrued until judgment (or until payment, if before judgment). Different provisions cover interest after judgment (if the judgment sum is not paid), and these are outside the scope of this element.

In personal injury claims where damages over £200 are awarded, some interest must be awarded unless there are special reasons for not doing so, but the amount is still in the court’s discretion.

In debt claims, if the defendant pays the whole debt during the proceedings, some interest must be awarded, but the amount is still in the court’s discretion.

Question 65

What is a summary of relief in the particulars of claim?

Answer 65

This is also referred to as the `prayer’. The prayer provides the court and the defendant with a quick means by which to ascertain what the claimant actually wants.

Question 66

What is the general structure a particulars of claim will follow?

Answer 66

o Introducing each party to help the court understand the context

o Set out the relevant duty

o Specify the breach

o Plead causation

o Set out the loss