Pre-Action & Starting a Claim

Question 1

What are the consequences for non-compliance with the pre-action protocol?

Answer 1

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.

Question 2

Will there be sanctions imposed for trivial breaches/minor infringements of the pre-action protocol?

Answer 2

No, it is unlikely.

Question 3

What should a party do where a limitation period is about to expire?

Answer 3

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.

Question 4

Outline the pre-action protocol for personal injury claims.

Answer 4

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

Question 5

Outline the PD for pre-action conduct in claims other than personal injury.

Answer 5

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

Question 6

Where should non personal injury claims up to £100,000 be issued?

Answer 6

County Court

Question 7

Where should non personal injury claims over £100,000 be issued?

Answer 7

County Court or High Court

Question 8

Where should personal injury claims less than £50,000 be issued?

Answer 8

County Court

Question 9

Where should personal injury claims of £50,000 or more be issued?

Answer 9

County Court or High Court

Question 10

What should be disregarded when considering what Court to issue a claim?

Answer 10

1. Interest
2. Costs
3. Any counterclaim
4. Contributory negligence
5. Any deduction of social security benefits

Question 11

What is the penalty for issuing in the wrong Court?

Answer 11

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%.

Question 12

What is required to issue a claim at Court?

Answer 12

Copies of the Claim Form, one for each of:
-the Court file
-the C
-the D

and the Court issue fee.

Question 13

When can the Money Claim Online service be used?

Answer 13

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.

Question 14

When is a certificate of service required to be filed?

Answer 14

When the Cl Sol are serving proceedings, must be filed within 21 days of service.

Question 15

When must the claim form be served after issue?

Answer 15

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.

Question 16

Can an extension of time be granted to serve the claim form?

Answer 16

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.

Question 17

If the particulars of claim are not contained in or served with the claim form, when must they be served?

Answer 17

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)).

Question 18

When must a response pack be served?

Answer 18

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.

Question 19

When are claim forms deemed served?

Answer 19

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.

Question 20

If particulars of claim are contained in the same claim form, when are they deemed served?

Answer 20

If the particulars of claim are contained in the claim form, they are considered served at the same time as the claim form.

Question 21

When using an instant method of service for documents other than the claim form, when will deemed service be?

Answer 21

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

Question 22

When using a non-instant method of service for documents other than the claim form, when will deemed service be?

Answer 22

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

Question 23

What is a statement of truth?

Answer 23

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.

Question 24

Where the party is an individual, how should their statement of truth read?

Answer 24

‘I believe that the facts stated in this claim form are true’.

Question 25

Where the party is a company, how should their statement of truth read?

Answer 25

‘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’.

Question 26

What is a claim form?

Answer 26

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.

Question 27

Is the Court’s power limited by the Claimant’s statement of value on the claim form?

Answer 27

No.

Question 28

What is a jurisdictional endorsement in relation to the High Court?

Answer 28

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.

Question 29

What are the particulars of claim and what must it include?

Answer 29

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 fact and cover the essential elements of the C’s cause of action.

Question 30

What must be included in the particulars of claim in a personal injury case?

Answer 30

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).

Question 31

If the C seeks interest, where must a statement to this effect be included?

Answer 31

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.

Question 32

What needs to be included in a claim for interest on a specified sum?

Answer 32

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

Question 33

What principles apply to the award of interest for statutory interest claims?

Answer 33

-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