Pre-action steps Flashcards
A claimant instructs a solicitor in respect of a complex breach of contract claim. The claimant’s solicitor writes to the defendant with concise details of the claim and the defendant’s solicitor responds two months later. The defendant denies the claimant’s allegations with reasons and details a counterclaim. The claimant’s solicitor writes to the defendant again and suggests a joint settlement meeting, however the defendant turns this down and suggests that, on reflection, mediation may be more appropriate.
Has the defendant complied with the Practice Direction on Pre-Action Conduct and Protocols (PDPAC)?
A-Yes, because the defendant has responded within six months of receiving details of the claim.
B-Yes, because the defendant has responded within three months of receiving details of the claim.
C-No, because the defendant has refused to attend a joint settlement meeting.
D-No, because the defendant has not responded within 14 days of receiving details of the claim.
E-No, because the defendant has not taken all steps possible to try to resolve the dispute.
Option B is correct because under the PDPAC the defendant must provide a response within a reasonable time. For complex cases the response should be provided within three months maximum. On the facts, the claim is complex and the defendant has responded within two months, so they have complied with the PDPAC.
Option A is wrong because the defendant has up to three months to respond once they receive details of the claim, as explained above.
Option C is wrong because the defendant is not obliged to engage with any alternative dispute resolution (ADR) and negotiation that is suggested, however they must give it consideration. Here, the defendant has reflected on the suggestion and suggested mediation instead.
Option D is wrong because this is a complex claim; in a straightforward claim a response should be provided within 14 days, however in this case it would be reasonable for the defendant to respond within three months.
Option E is wrong because parties are expected to take only reasonable and proportionate steps to try to resolve the matter, rather than being expected to take all steps possible.
A solicitor acts for a professional singer, who is the defendant in an action for breach of contract brought by a claimant company which provides bookings for music festivals. The claimant alleges that the defendant has arrived late for performances, and that the quality of their performances has deteriorated, resulting in complaints. The claimant has advised that they do not intend to renew their contract with the defendant. The defendant accepts that some personal issues have affected their performances recently, however the issues are now resolved. The defendant does not want any bad publicity and has ongoing contracts with other booking companies. The defendant is prepared to wait for as long as it takes to reach a satisfactory outcome.
What is the most relevant advantage of mediation in these circumstances?
A-Any agreement reached in mediation will be automatically binding on the parties.
B-Mediation takes place in private and the defendant can preserve their reputation.
C-Mediation is much cheaper and quicker than litigation.
D-The parties would be much more likely to preserve their business relationship.
E-The parties are able to withdraw at any stage.
Option B is correct because the defendant has contracts with other booking companies and does not want bad publicity. If other booking companies and / or the public generally become aware of the matter, this may affect future bookings and even lead to other future claims.
Option A is wrong because agreements reached in mediation are not automatically binding.
Option C is wrong because the defendant is not concerned about the matter being resolved quickly on the facts.
Option D is wrong because the claimant does not intend to renew the contract, so preserving the business relationship is irrelevant.
Option E is wrong because this is both an advantage and disadvantage of mediation.
A claimant has been successful in a breach of contract claim and the court has awarded the damages claimed. During the proceedings, the claimant refused the defendant’s proposals to engage in mediation. The defendant argues that, in light of this refusal, the court should impose a costs sanction on the claimant.
What approach will the court take when determining whether to impose a costs sanction on the claimant?
A-The court will not impose a costs sanction because the claimant is the successful party in the litigation.
B-The defendant will have the burden of showing that the claimant’s refusal to participate in ADR was unreasonable.
C-The court cannot impose a costs sanction because the claimant responded to the proposals rather than remaining silent.
D-The claimant will have the burden of discharging the presumption in favour of mediation.
E-The court will not impose a costs sanction because mediation is unsuitable for claims where an injunction is required.
Option B is correct. The burden is on the defendant to show that the claimant’s refusal to participate in ADR was unreasonable.
Option A is wrong. The court may impose a costs sanction on a successful party in litigation if they unreasonably refuse to participate in ADR.
Option C is wrong. The court may impose a costs sanction where a party has unreasonably refused to participate in ADR. The fact that the claimant responded to the proposals (by refusing them) rather than remaining silent does not prevent the court from imposing a costs sanction.
Option D is wrong. As explained above, the burden will be on the defendant to show that the claimant’s refusal to participate in ADR was unreasonable. There is not a presumption in favour of mediation.
Option E is wrong. Although it is correct that mediation is unsuitable where an injunction is required (at least until an injunction has been granted), there is nothing in the facts to suggest an injunction was required. The facts state that the claimant claimed (and was awarded) damages.
On 31 January [4 years ago], the claimant was knocked down whilst crossing the road when he was hit by a speeding vehicle. The driver did not stop after the accident and the claimant cannot remember anything about the vehicle which hit him.
The claimant was unsure whether he had a valid claim for damages and consulted a solicitor about his accident on 7 February [3 years ago]. The solicitor told him the same day that he had a claim against the driver of the vehicle.
On 30 July [3 years ago], a woman informed the claimant’s solicitor that she had witnessed the accident and identified the vehicle as one owned by a local supermarket.
A claim form and particulars of claim were issued and served on the supermarket on the 20 January [this year]. The supermarket is defending the claim on the basis that the limitation period for bringing the claim has expired. What advice should be given to the claimant regarding the limitation period?
A-The limitation period is three years from the date of the accident and so the limitation period expired last year on 31 January.
B-The limitation period is six years from the date of the accident and so the claim form was issued before the limitation expired.
C-The limitation period began to run when the claimant discovered the identity of the defendant on 30 July [3 years ago] and so the claim form was issued on 20 January [this year] before the limitation expired on 30 July [this year].
D-The limitation period is three years from the date the claimant received legal advice that he had a claim against an unknown driver and so the limitation period expired on 7 February [this year] after the claim form was issued on 20 January [this year].
E-The limitation period is six years from the date the claimant received legal advice that he had a claim against an unknown driver and so the claim form was issued before the limitation expired.
Option C is correct, meaning the other options are wrong.
Where in any action, whether for negligence, nuisance or breach of statutory duty, the claimant claims damages for personal injuries, the basic period of limitation is only three years. However, this period runs from the date on which the cause of action accrued; or the date, if later, of the claimant’s knowledge. The expression ‘date of knowledge’ means the first date when the claimant knew, or might reasonably be expected to have known, certain specific facts. These include the seriousness of his injury, its cause, and the identity of the defendant. So, whilst the cause of action arises when the accident happens on 31 January [4 years ago], it is not until 30 July [3 years ago] that the claimant has sufficient knowledge to bring the personal injury claim when the owner of the vehicle that knocked him over was identified. The limitation period therefore expired on 30 July [this year] after the claim form was issued on 20 January [this year].
A girl now aged 17 was injured in an accident just over five years ago. The girl had the requisite knowledge to bring a claim at the time of the accident. The girl now wishes to bring a personal injury claim.
Has the limitation period for the girl’s claim expired?
A-Yes, because the limitation period is three years from the date of the cause of action or the date of knowledge of the person injured.
B-No, because the limitation period is six years from the date of the cause of action or the date of knowledge of the person injured.
C-No, because the overriding time limit is 15 years from the injury.
D-Yes, because the overriding time limit is five years from the injury.
E-No, because the limitation period has not yet started to run.
Option E is correct. The limitation period has not yet started to run because, for children’s personal injury claims, the time limit does not start to run until their 18th birthday.
Option A is wrong. Whilst this correctly describes the usual limitation period for a personal injury claim, there is an exception for children as explained above.
Option B is wrong. This is not the correct limitation period for a personal injury claim and the limitation period has not begun to run in this case for the reasons given above.
Option C is wrong. The 15 year overriding time limit relates to claims for latent damage and is not relevant to this question.
Option D is wrong. There is no 5 year overriding time limit.
A woman seeks legal advice from a solicitor after a lorry lost control and crashed into her house. No one was injured, as the woman was away on holiday at the time, and she only became aware of the damage when she returned home a week later. The front of the woman’s house was damaged and she paid upfront for repairs. She has tried to resolve the dispute with the company which employed the lorry driver, as he had been driving negligently, however they have not cooperated. It is now four years since the crash. The woman asks the solicitor whether she is within time to bring a claim against the company.
Has the limitation period expired?
A-No, because the woman has 15 years from the date of the crash to bring proceedings against the company.
B-Yes, because the woman has three years from the date she became aware of the damage to bring proceedings against the company.
C-Yes, because the woman has three years from the date of the crash to bring proceedings against the company.
D-No, because the woman has six years from the date she became aware of the damage to bring proceedings against the company.
E-No, because the woman has six years from the date of the crash to bring proceedings against the company.
Option E is correct because the limitation period for negligence claims, which do not involve personal injury, is six years from when the damage occurs as a result of breach of duty. Here, the limitation period runs from the day the lorry crashed into the house. Four years have passed, so the limitation period has not yet expired.
Option A is wrong because the claimant has six years in which to start proceedings (as explained above). 15 years after the negligent act or omission is the overriding time limit for negligence claims where the damage is latent.
Option B is wrong because the limitation period runs from when the damage occurs as a result of the breach of duty. The date when the claimant became aware of the damage would only be relevant in cases of latent damage. Further the limitation period is six years rather than three.
Option C is wrong because the limitation period is six years for negligence claims that do not involve personal injury.
Option D is wrong because the limitation period runs from when the damage occurs as a result of the breach of duty. The date when the claimant became aware of the damage would only be relevant in cases of latent damage.
A building development company is the claimant in an action for breach of contract against a defendant company providing building services. The claimant seeks to recover their losses arising from the defendant’s sub-standard building work. The parties entered mediation and agreed a settlement. The defendant has failed to comply with the terms of the agreement reached in mediation and has not paid the sum agreed to the claimant.
Can the claimant automatically enforce the terms of the agreement?
A-Yes, because the claimant has automatic permission to enforce the agreement like a court judgment.
B-No, because the claimant must seek permission to enforce the agreement as if it were a court judgment.
C-No, because the agreement is not legally binding on the parties in any way.
D-Yes, because failure to comply with the agreement amounts to a breach of contract.
E-No, because the agreement is not automatically binding and cannot be enforced like a court judgment.
Option E is correct because an agreement reached in mediation is not automatically binding, as it cannot be enforced like a court judgment. The claimant may instead sue the defendant for breach of contract, as agreeing to terms reached in mediation amounts to formation of a contract.
Option A is wrong because the agreement cannot be enforced like a court judgment. Permission is irrelevant.
Option B is wrong because the agreement cannot be enforced like a court judgment. Permission is irrelevant.
Option C is wrong because the agreement may be contractually binding.
Option D is wrong because although there may be a breach of contract, the claimant cannot automatically enforce the terms.
A client publishing company is considering bringing proceedings for breach of contract against an author who is resident in France. The client alleges that, last year, the author failed to deliver a finished book and caused the client to suffer a loss of profits. The contract contained a clause designating exclusive jurisdiction to the courts of England and Wales.
What advice should the solicitor give to the client regarding the prospective proceedings?
A-The limitation period for bringing a claim has expired.
B-A letter before claim is unlikely to be required in this case.
C-The purpose of damages will be to put the client in the position they would have been in had the contract been properly performed.
D-The courts of France can hear the case notwithstanding the exclusive jurisdiction clause.
E-The claim is likely to be categorised as a specified claim.
A dispute has arisen between two shipping companies regarding an alleged breach of contract. Both parties wish to obtain a binding decision without third parties becoming aware of the dispute. One party has instructed a solicitor for advice on dispute resolution options. The solicitor reviews the relevant contract and notes that it does not contain an arbitration clause.
What advice should the solicitor give regarding dispute resolution options?
A-Arbitration is likely to be an appropriate option because the dispute will receive a greater depth of investigation than in litigation.
B-Litigation is likely to be an appropriate option because it will enable the parties to resolve the dispute privately.
C-Arbitration is likely to be an appropriate option because it is a private process and the arbitrator’s decision will be binding.
D-Mediation is likely to be an appropriate option because it is a voluntary process and results in a binding decision.
E-Litigation is likely to be an appropriate option because there is no arbitration clause in the contract.
Option C is correct. Arbitration is likely to be an appropriate option given that it is private (as the parties do not want third parties to become aware of the dispute) and results in a binding decision (which the parties are looking for on these facts).
Option A is wrong. Although arbitration is likely to be appropriate for the reasons discussed above, in arbitration the dispute may not receive the depth of investigation it would receive in the courts (depending upon the procedures adopted).
Option B is wrong. Litigation is a public process and therefore will not enable the parties to resolve their dispute privately.
Option D is wrong. Although it is correct that mediation is a voluntary process, it does not result in a binding decision and is therefore unlikely to be appropriate on these facts.
Option E is wrong. The parties are still able to agree to arbitrate their dispute even if the contract does not contain an arbitration clause, so the lack of arbitration clause on the facts does not mean litigation is likely to be an appropriate option.
A woman is considering taking legal action against one of her neighbours. The neighbour has begun to use their garage as a brewery and their activities are generating harmful odours. The woman visits a solicitor for advice on how to stop the neighbour’s activities. The solicitor advises her that mediation would be the best first step before involving the court.
Is the solicitor’s advice correct?
A-Yes, because litigation is considered the last resort.
B-No, because arbitration would be more appropriate than mediation in this case.
C-Yes, because the involvement of an independent third party may help parties to resolve a dispute.
D-Yes, because the decision of a mediator would be binding on the parties.
E-No, because the woman requires an injunction.
Option E is correct. Mediation would not be the best first step before involving the court as the woman needs an injunction to stop the nuisance, so the solicitor’s advice is wrong. However, mediation may be appropriate once any injunction has been granted.
Option A is wrong. Whilst it is correct that litigation is considered the last resort, mediation would not be appropriate as an injunction is required so the solicitor’s advice is wrong.
Option B is wrong. Whilst it is correct that the solicitor’s advice is wrong, this is due to the need for an injunction rather than mediation being less appropriate than arbitration. An injunction would not be available in arbitration.
Option C is wrong. Whilst it is correct that the involvement of an independent third party (as in mediation) may help parties to resolve a dispute, mediation is not appropriate on the facts as an injunction is required.
Option D is wrong. Whilst it is correct that the solicitor’s advice is wrong, a mediator will aim to help the parties reach a mutually agreed solution. The mediator cannot impose a solution via a binding decision.
A claimant manufactures men’s shirts. On 6 February 2020, the claimant entered into a contract with a defendant for the purchase of 50 rolls of material. The material was delivered to the claimant by the defendant on 8 April 2020. When these rolls were inspected by the claimant on 19 April 2020, nearly all of them were found to be faulty.
What is the latest date the claimant must issue proceedings against the defendant for limitation purposes?
A-19 April 2026.
B-8 April 2026.
C-19 April 2023.
D-8 April 2023.
E-6 February 2026.
Option B is correct. As the client’s claim is for breach of contract, under the Limitation Act 1980 it will have 6 years from the date of breach within which to bring its claim. In a contract for the sale of goods, the date of breach will usually be the date of delivery (being, logically, the first point at which the buyer has defective goods in his hands, contrary to the seller’s contractual obligations).
Option A is wrong because in a breach of contract claim the cause of action accrues at the date of the breach of contract, not when that breach is discovered.
Options C, D and E are wrong as under the Limitation Act 1980 the limitation period for a breach of contract claim is 6 years from the date of the breach.
A solicitor was instructed on 30 January by a client to collect a debt. The debt has been outstanding for some time because the client had forgotten to chase the debtor for payment. The limitation period for the debt expires on 4 February the same year.
What would be the best course of action for the solicitor to take on behalf of the man at this time?
A-Write to the debtor setting out the nature of the proposed claim and await a response.
B-Write to the debtor asking that they agree to take no issue in relation to limitation until the steps required by the relevant pre-action protocol have taken place.
C-Write to the debtor proposing a form of alternative dispute resolution that might settle the dispute without commencing proceedings.
D-Issue proceedings and serve them immediately on the debtor.
E-Issue proceedings and then ask the debtor to agree to apply to the court to stay the proceedings.
Option E is the best answer. By way of information, paragraph 17 of the Practice Direction on Pre-Action Conduct and Protocols states, “This Practice Direction and the pre-action protocols do not alter the statutory time limits for starting court proceedings. If a claim is issued after the relevant limitation period has expired, the defendant will be entitled to use that as a defence to the claim. If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Practice Direction or the relevant pre-action protocol, the parties should apply to the court for a stay of the proceedings while they so comply.” This is the best step the solicitor can take next to protect the client’s cause of action and so the solicitor is acting in the client’s best interests.
Option A is not the best answer. Writing to the defendant setting out the nature of the proposed claim and waiting for a response will see the limitation period expire on 4 February. The defendant will then be entitled to use that as a defence to the claim. See the feedback to the correct option E.
Option B is not the best answer. Writing to the defendant asking that they agree to take no issue in relation to limitation until the pre-action steps required by the PD have taken place will see the limitation period expire on 4 February. The defendant will then be entitled to use that as a defence to the claim. See the feedback to the correct option E.
Option C is not the best answer. Writing to the defendant proposing a form of alternative dispute resolution that might settle the dispute without commencing proceedings will see the limitation period expire on 4 February. The defendant will then be entitled to use that as a defence to the claim. See the feedback to the correct option E.
Option D is not the best answer. As per the feedback to option C, it is correct that proceedings should be issued but it is unnecessary to incur the expense of serving the proceedings. The claimant should next write to the defendant seeking agreement to stay the proceedings in order for the parties to follow the procedures in the PD.
A small family run company is involved in a dispute with a local supermarket to recover a debt owed of £10,000. The company wish to resolve the dispute quickly and preferably without litigating. An invitation has been made to the supermarket for the parties to mediate the dispute but the supermarket has refused the offer.
Is there a presumption in favour of mediation in these circumstances?
A-Yes, because the court encourages the parties to resolve disputes without litigating.
B-Yes, because the court can require the parties to mediate a dispute.
C-Yes, because mediation may result in the dispute being resolved quickly.
D-No, because the court will not automatically expect the parties to mediate a dispute.
E-No, because the court will require the parties to arbitrate the dispute.
Option D is correct because there is not a presumption in favour of mediation. A refusal to an invitation to participate in alternative dispute resolution may be regarded as unreasonable but this is not automatic.
Option A is wrong because whilst the courts encourage the parties to resolve disputes without litigating, there is not a presumption that the parties will always participate in alternative dispute resolution.
Option B is wrong because the court cannot require the parties to mediate.
Option C is wrong because whilst an advantage of mediation is that it may result in the dispute being resolved quickly, there is not a presumption in favour of mediation.
Option E is wrong because the court cannot require the parties to arbitrate.
Last month, a clinic providing botox treatments entered into a contract to purchase computer software from a supplier to assist in managing customer appointments. The clinic alleges that the software failed to meet its specifications. The software supplier disputes this, asserting that the software it provided complied with all of the stipulated requirements. The clinic has instructed solicitors to issue proceedings against the software supplier for breach of contract.
Which of the following is the best advice to the clinic?
A-Proceedings should be issued at court as soon as possible to protect the clinic’s legal position as the software supplier has denied breach of contract.
B-The clinic is required to engage in pre-action steps to attempt to settle disputes without court proceedings being issued, in accordance with the Practice Direction on Pre-Action Conduct and Protocols.
C-The clinic is not required to comply with the Practice Direction on Pre-Action Conduct and Protocols before issuing proceedings as the parties are unlikely to reach a settlement in this case.
D-The court will impose penalties where the clinic has failed to comply with the Practice Direction on Pre-Action Conduct and Protocols, resulting in proceedings that might otherwise not have been commenced as well as unnecessary costs being incurred.
E-The clinic should not reveal to the software supplier the specific details of its case as this will allow the software supplier to anticipate weaknesses in the clinic’s case.
Option B is correct. The Practice Direction on Pre-Action Conduct and Protocols is clear that, before commencing proceedings, the parties must exchange information so they can understand the issues, consider ADR and attempt to settle the dispute without litigation.
Option A is wrong. Court proceedings do not need to be issued as soon as possible because the limitation period is not due to expire and pre-action steps need to be taken to try and settle the dispute without litigation.
Option C is wrong as assisting the parties in settling cases is not the only purpose of the Practice Direction on Pre-Action Conduct and Protocols and the parties should comply even if settlement seems unlikely.
Option D is wrong. It is at the discretion of the court as to whether or not they impose penalties on a party for failure to adhere to the Practice Direction on Pre-Action Conduct and Protocols before proceedings are issued.
Option E is wrong as early disclosure of the substance and concise details of the claim and supporting evidence will assist the parties in making an informed decision on the merits of the case and, with ADR, will lead to the likelihood of settlement without the need for litigation.
A prospective claimant seeks to bring a claim against a prospective defendant for a breach of contract, seven years after the breach allegedly occurred. The prospective claimant only discovered the breach occurred five years ago. The parties have not agreed any contractual limitation period for bringing a claim. The claimant seeks advice from a solicitor regarding the prospective claim, including the issue of whether the claim may be statute barred.
What is the best advice the solicitor could provide?
A-The claim would not be statute barred, because the limitation period begins to run from the date of knowledge of the breach.
B-The claim would not be statute barred, because the standard limitation period for contract claims is seven years.
C-The claim would be statute barred, and the effect of this would be that the prospective claimant is prevented from bringing the claim.
D-The claim would be statute barred, and the effect of this would be that the prospective defendant would have a technical defence to the claim.
E-The claim would be statute barred, because the limitation period begins to run from the earlier of the date of breach or knowledge of the breach.
Option D is correct. Where a party has missed the limitation period (which in this case would be six years from the date of breach of contract), the defendant will have a technical defence to the claim. If the court agrees that the claim is statute barred, the claimant will not succeed in the litigation.
Option A is wrong, because the date of knowledge is applicable to some tort claims but not breach of contract claims.
Option B is wrong, because the standard limitation period for contract claims is six years from the date of breach of contract.
Option C is wrong, because the effect of a limitation period expiring is that a defendant has a technical defence to the claim, not that a claimant is prevented from bringing it in the first instance. If the court agrees that the defendant has raised a successful defence of limitation, the claimant will not be allowed to proceed with the claim.
Option E is wrong because the date of knowledge is applicable to some tort claims but not breach of contract claims.
Please see Dispute Resolution Manual Chapter 2 for further information.
