Pre-action steps and Limitation

Question 1

What are preliminary considerations when advising on issuing proceedings (aside from ADR)?

Answer 1

• jurisdiction and governing law
• limitation
• whether there is a legal cause of action and if so the merits of the client’s claim
• who the claimant and defendant are and the nature of the financial circumstances

Question 2

Limitation period for contract claims

Answer 2

6 years from the breach of contract

Question 3

Limitation period for Tort claims (non-latent and not personal injury)

Answer 3

6 years from the date the damage occurs

Question 4

Limitation period for personal injury

Answer 4

Three years from the date the cause of action occurs or date of knowledge of the person injured - whichever is later

Question 5

Limitation period for latent damage cases

Answer 5

Six years from date when damage occurs

OR

Three years from the date of knowledge

Hard-stop of 15 years after the negligent act or omission

Question 6

What is issuing protectively?

Answer 6

When the limitation period is about to expire, issuing proceedings and then relying on the 4 month period to investigate before serving.

Question 7

Can an extension to the limitation period ever be granted?

Answer 7

Only in exceptional circumstances. E.g. personal injury case where the prejudice to the claimant in not being able to bring the claim substantially outweighs the detriment to the defendant

Would need to apply to court, set out its reasons and any evidence in support and the court would make a decision.

Question 8

What is a litigation friend?

Answer 8

A person who conducts court proceedings on behalf of a child or protected party

Question 9

What are the common pre-action steps

Answer 9

• Claimant should write to the defendant with concise details of the claim. Letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant and if money how that is calculated
• Defendant should respond to claimant within a reasonable time - 14 days in a straightforward case and no more than three months in a very complex one. The reply should include confirmation as to whether the claim is accepted and if it is not the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as any details of any counterclaim.
• parties should also disclose key documents to the issues in dispute

Question 10

What are the key requirements of the pre-action conduct and protocols?

Answer 10

Exchange of key information: Parties should look to disclose any evidence that allows them to achieve the objectives of pre-action conduct

Consideration of ADR: Parties are expected to explore and provide evidence that consideration has been given to resolving the dispute using a form of ADR

Instruction of experts (where appropriate): Parties should look to instruct a single joint expert instead of an expert for each side to save time and costs

Proportionality: Only reasonable and proportionate steps should be taken by the parties to try to resolve the matter and costs incurred in taking those steps should also be proportionate to the matter in dispute

Question 11

What are the consequences for failing to follow pre-action conduct?

Answer 11

• an order that the party at fault pays the costs of the proceedings or part of the costs of the other party or parties
• an order that the party at fault pay those costs on an indemnity basis:
• if the party at fault is a claimant who has been awarded a sum of money, an order depriving that party of an interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded
• if the party at fault is a defendant and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate (not exceeding 10% above base rate) than rate that would have been awarded

Question 12

What is indemnity basis?

Answer 12

A term used in the context of costs recovery in civil litigation. If costs are awarded by the court on the indemnity basis any dispute between the parties as to the value of those costs will be resolved in favour of the receiving party and there is no requirement for the costs sought to be proportionate.

This means that a party paying their opponents costs on an indemnity basis are much more likely to have a higher costs liability than if there were awarded on the standard basis.