Pre-Action & Starting a Claim Flashcards
What are the consequences for non-compliance with the pre-action protocol?
The most likely consequence of non-compliance will relate to costs and interest.
The PD also states that the Court may stay the proceedings until the relevant steps are taken. When deciding whether to impose a sanction for non-compliance, the Court will consider the overall effect of the non-compliance on the other party.
Will there be sanctions imposed for trivial breaches/minor infringements of the pre-action protocol?
No, it is unlikely.
What should a party do where a limitation period is about to expire?
Where a limitation period is about to expire, it will be necessary to issue proceedings and apply for a stay after issue in order that the pre-action procedure can be followed.
Outline the pre-action protocol for personal injury claims.
C should write Letter of Notification to potential D giving brief details
Parties to consider any rehabilitation needs and how to address them
C should write to D under a full Letter of Claim
D to acknowledge Letter of Claim within 21 days and provide Letter of Response within 3 months of letter acknowledging claim
If denied, the parties should disclose key documents, engage in negotiations and make settlement proposals. C should send schedule of loss
Joint selection of quantum expert, or C discloses report and D sends written questions
Outline the PD for pre-action conduct in claims other than personal injury.
C to write to D with full Letter of Claim
D should send a Letter of Response within a reasonable period either accepting or rejecting the claim
Parties should disclose key documents, engage in appropriate negotiations and make settlement proposals
Where should non personal injury claims up to £100,000 be issued?
County Court
Where should non personal injury claims over £100,000 be issued?
County Court or High Court
Where should personal injury claims less than £50,000 be issued?
County Court
Where should personal injury claims of £50,000 or more be issued?
County Court or High Court
What should be disregarded when considering what Court to issue a claim?
- Interest
- Costs
- Any counterclaim
- Contributory negligence
- Any deduction of social security benefits
What is the penalty for issuing in the wrong Court?
The Court may transfer the case and order the C to pay the costs of the transfer.
There is a separate sanction for wrongly beginning a matter in the High Court, the penalty being any costs awarded in the claim can be deducted by up to 25%.
What is required to issue a claim at Court?
Copies of the Claim Form, one for each of:
-the Court file
-the C
-the D
and the Court issue fee.
When can the Money Claim Online service be used?
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.
When is a certificate of service required to be filed?
When the Cl Sol are serving proceedings, must be filed within 21 days of service.
When must the claim form be served after issue?
Where the claim form is being served in the jurisdiction, the ‘relevant step’ to serve the claim form must be completed before 12am midnight on the calendar day four months after the date of issue of the claim form.
If the claim form is not served within this time, then the claim will fail automatically.
Can an extension of time be granted to serve the claim form?
Yes, under CPR 7.6, the C can make an application within the four month period and must show good reasons for the extension.
Any application made after the deadline will only be granted if the application has been made promptly in light of a procedural/administrative error by the Court.
If the particulars of claim are not contained in or served with the claim form, when must they be served?
If particulars of claim are not contained in or served with the claim form, they must be served within 14 days of service of the claim form (CPR 7.4(2)).
When must a response pack be served?
If the particulars of claim are contained in or served with the claim form, the C must also serve the response pack along with the claim form and particulars of claim (CPR 7.8(1)).
Where the particulars of claim are to follow, the C should serve only the claim form: the response pack will be served later with the particulars of claim.
When are claim forms deemed served?
Claim forms are deemed served on the second business day after the relevant service step has been completed (CPR 6.14) whatever method of service is used.
If particulars of claim are contained in the same claim form, when are they deemed served?
If the particulars of claim are contained in the claim form, they are considered served at the same time as the claim form.
When using an instant method of service for documents other than the claim form, when will deemed service be?
When using an ‘instant method’ of service:
-If done before 4:30pm on a business day: deemed served the same day
-Otherwise: deemed served the next business day
When using a non-instant method of service for documents other than the claim form, when will deemed service be?
When using a ‘non-instant method’ of service:
Deemed served second day after posting/giving to DX provider, if a business day
Otherwise: deemed served the next business day
What is 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.
If the document turns out to contain a false statement and the person signing the statement of truth does not have an honest belief that the statement was true, then proceedings for contempt of court may be brought against the person signing.
Where the party is an individual, how should their statement of truth read?
‘I believe that the facts stated in this claim form are true’.
Where the party is a company, how should their statement of truth read?
‘The D believes that the facts stated in this defence are true. I am duly authorised by the D to sign this statement of truth’.
What is a claim form?
The document used to commence proceedings and to set out key elements of the claim.
It is the first statement of case and prepared by the D. The claim is usually on Form N1.
Is the Court’s power limited by the Claimant’s statement of value on the claim form?
No.
What is a jurisdictional endorsement in relation to the High Court?
If the High Court is chosen to issue the claim in, a ‘jurisdictional endorsement’ must be included in the claim form (CPR 16.3(5)). In relation to a claim for money, if the claim form is to be issued in the High Court it must:
-state that the C expects to recover more than £100,000;
-state that some other enactment provides that the claim may be commenced only in the High Court and specify the same;
-if the claim is a claim for personal injuries state that the C 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.
What are the particulars of claim and what must it include?
The particulars of claim set out the C’s case in full detail. It is the C’s main statement of case. It must include a concise statement of the facts and cover the essential elements of the C’s cause of action.
What must be included in the particulars of claim in a personal injury case?
In personal injury claims, the particulars should include the C’s DOB, details of their injuries, and attach a schedule of loss and the report of any medical expert which is relied on (16 PD 4).
If the C seeks interest, where must a statement to this effect be included?
Details must be set out in the particulars of claim.
Statutory right under S35A Senior Courts Act 1981 in High Court and S69 County Courts Act 1984 in the County Court.
What needs to be included in a claim for interest on a specified sum?
The following needs to be set out:
-applicable percentage rate
-dates to/from which interest is being claimed
-total amount claimed up to the issue of the claim form
-daily rate of interest thereafter
What principles apply to the award of interest for statutory interest claims?
-Court has a discretion as to whether award interest
-In personal injury claims where damages over £200 are awarded, some interest must be awarded
-In debt claims, some interest must be awarded if D pays up during proceedings
