Pre-action steps

Question 1

overriding objective of CPR rules

Answer 1

to enable the court to deal with cases justly and at proportionate cost (CPR 1.1(1))

• CPR 1.2.: the court must always bear in mind this objective and seek to give effect to the overriding objective when it:
• Exercises any power given to it by the Rules; or
• Interprets any rule (subject to rules 76.2, 79.2, 80.2, 82.2).

Question 2

Dealing with cases justly and at proportionate cost

Answer 2

CPR 1.1(2) (a) – (f))

Parties on an equal footing
- doesn’t mean parties must use legal representatives of equivalent experience / cost
- costs should be reasonable and proportionate
- e.g. giving smaller firm more time to prepare disclosure lists or trial bundles (Maltez v Lewis (1999))

Saving expense
- dealing with a case proportionately to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party
- dealing with cases expeditiously and fairly
- allotting an appropriate share of the court’s resources
- enforcing compliance with the rules, PD and orders

Question 3

Parties’ duty to further the overriding objective

Answer 3

CPR 1.3.

expect high level or cooperation and realism from the parties
- Hannigan v Hannigan [2000]: C started proceedings using wrong claim form, court held that D should have just pointed out that the mistake had been made so they could have been corrected, overriding objective is not furthered by squabbles about technicalities

there is a duty to assist the court, but not the other party

Woodward v Phoenix Healthcare Distribution Ltd [2018]: solicitor is not required to point out the mistake of the opponent that they didn’t contribute towards

Question 4

purpose of pre-action protocols

Answer 4

“explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims” (Practice Direction on Pre-Action Conduct, para 1)

relevant pre-action protocol depends on the nature of the claim brought

Question 5

The Practice Direction on Pre-Action Conduct (PDPAC)

Answer 5

applies to a claim unless a more specific protocol applies (Para 2)

Question 6

requirements of the PDPAC

Answer 6

1. Exchange sufficient information and consider ADR
   - Part 3, will need to exchange information to understand each other’s position, make decisions about how to proceed, settle the issues without proceedings, consider ADR, support efficient management of proceedings, reduce costs
2. send or respond to a letter before claim as part of exchanging sufficient information
   - Para 6(a)
   - C needs to respond within a reasonable time (14 days or 3 months) (Para 6(b)
3. consider the use of ADR
   - para 8
   - at all times, even after proceedings have started (para 9)
   - court might ask for evidence that ADR was considered (para 11)

Question 7

experts at pre-action stage

Answer 7

PDPAC, para 7

court must give permission before expert evidence can be relied upon > should be cautious about getting expert evidence at pre-action stage

parties should “consider” using a Single-Joint Expert (SJE)

Question 8

Pre-Action Protocol for Professional Negligence

Answer 8

Applies where claims of negligence, breach of contract, or breach of duty are brought against professionals (such as solicitors, or accountants)

Professional” is undefined. If the parties dispute whether someone is a “professional”, they should use this protocol (para 1.2)

Doesn’t apply to: architects, engineers, quantity surveyors, healthcare providers, defamation

Question 9

Differences between PPPNC and PDPAC

Answer 9

The PPPNC:
1. encourages C to send a preliminary notice to D (para 5)
2. sets out the requirements for the letter before claim (para 6)
3. sets out time limits for a letter of response to the letter before claim (para 7 / para 8.2. & 8.3.)

Question 10

Letter before claim requirements

Answer 10

• PPPNC para 6

should contain:
- identity of any other parties
- clear chronological summary of facts and dates, include key documents
- reasonable requests for documents
- allegations
- explanation how allegations cause the loss
- estimate of the amount of the loss
- confirm whether an expert has been appointed and provide their: identity, discipline, and date of appointment
- request that the copy of the letter should be forwarded to the professional’s insurers