Pre-action steps

Question 1

What is the limitation period for a simple contract claim?

Answer 1

6 years from the date the breach of contract occurs

(unless different limitation period specified in the contract)

Question 1

What is limitation?

Answer 1

The strict time limit imposed on when proceedings can be brought

If brought after limitation period has expired, defendant will have a complete defence

(Nb. court has discretion to extend, but will do so only in exceptional circumstances)

Question 2

What is the limitation period for a tort claim?

Answer 2

6 years from the date the damage occurs
(eg. date the loss is sustained as a result of the breach of duty of care)

Nb. does not apply to PI claims & Consumer Protections Act claims

Question 3

What is the limitation period for a personal injury claim?

Answer 3

3 years from the date of the cause of action or the date of knowledge that person injured

Nb. for children, only starts running on their 18th birthday

Question 4

What is the limitation period for latent damage claims in tort of negligence?

Answer 4

Whichever is the later of:

(a) 6 years from the date the damage occurred; or

(b) 3 years from the date on which the claimant first had knowledge of the damage

Overriding time limit is 15 years from the date of the negligence

Question 5

What is the difference between a specified claim & an unspecified claim?

Answer 5

I. Specified claim - for a fixed amount of money owed

II. Unspecified claim - court will determine amount payable

Question 6

What is a cause of action?

Answer 6

The legal basis of the claim (eg. breach of contract, negligence)

Question 7

What is the purpose of damages in a contract dispute?

Answer 7

To put the claimant in the position they would have been in had the contract been properly performed

Question 8

What is the purpose of damages in a negligence dispute?

Answer 8

To put the claimant in the position they would have been in had the negligent act not occurred

Question 9

What is the purpose of damages in a nuisance claim?

Answer 9

To put the claimant in the position they would have been in had the nuisance not occurred

Question 10

What is the purpose of damages in a misrepresentation claim?

Answer 10

To restore the claimant to the position they were in before the contract was entered into

Question 11

What is the main principle behind the existence of the pre-action protocols?

Answer 11

That litigation should be a last resort

Question 12

What do the pre-action protocols do?

Answer 12

Dictate the stages that must be followed before a court proceedings can be issued

• Several protocols for specific claims (eg. debt, PI, professional negligence)
• If no relevant protocol exists, should follow the Practice Direction on Pre-Action Conduct and Protocls

Question 13

What are the 4 stages of the Practice Direction on Pre-Action Conduct & Protocols?

Answer 13

1. Claimant sends letter before claim
2. Defendant sends letter of response within 14 days (or 3 months if complex claim)
3. Claimant replies & parties consider negotiation / ADR / appointment of expert(s)
4. Stocktake: before issuing proceedings, review positions & consider whether proceedings can be avoided

Question 14

What type of claims does the Pre-Action Protocol for Debt Claims apply to?

Answer 14

Debt claims where the debtor is a consumer (or sole trader) only

Question 15

How long does a debtor have to respond to the letter before claim in the Pre-Action Protocol for Debt Claims?

Answer 15

30 days (instead of standard 14)

Question 16

What are the 5 stages of the Pre-Action Protocol for Professional Negligence?

Answer 16

1. Claimant gives Preliminary Notice to professional
2. Claimant sends Letter of Claim
3. Defendant acknowledges Preliminary Notice in writing within 21 days of receipt
4. Defendant investigates claim (time limit: 3 months)
5. Defendant sends Letter of Response (if they admit or not) &/or Letter of Settlement (if proposing settlement)

If LoResponse denies claim entirely & no settlement offer, claimant can start court proceedings

If claim admitted in whole or in part &/or settlement offered → negotiation or ADR

Question 17

When there is a choice of law clause in a contract, which country’s laws will apply?

Answer 17

Whichever country set out in the clause

Question 18

Can the parties pick which country’s laws are applicable to their dispute?

Answer 18

Only if there is a clause as such in their contract - otherwise no choice

Question 19

In which jurisdiction can proceedings be commenced?

Answer 19

If there is an exclusive jurisdiction agreement, it must be that designated country (Hague Convention)

If no agreement, jurisdiction is established by serving the defendant within the jurisdiction

Question 20

Can a defendant be served outside of England & Wales?

Answer 20

Only with the permission of the court

Will be granted in a contract claim if: contract made or breached in E & W, governed by English law, or contains agreement conferring jurisdiction on English courts

Will be granted in a tort claim if: act causing damage as committed in E & W, or loss was sustained in E & W

Question 21

Does a claimant still need to comply with the pre-action protocols before issuing a claim if the limitation period is about to expire?

Answer 21

Best option is to issue proceedings & then ask the defendant to agree to apply to the court to stay proceedings to then have time to comply

Question 22

In an international sale of goods case, which country’s laws apply?

Answer 22

The jurisdiction where the goods were delivered