PRE-ACTIONCONSIDERATIONS:PRE-ACTION PROTOCOLS AND PRE-ACTION APPLICATIONS Flashcards
what is PRE-ACTION PROTOCOLS
- Pre-action protocols provide guidance for pre-litigation conduct, setting out the steps that each party should take before commencing a legal action.
- Protocols do not hold the same status as Civil Procedure Rules, as they are technically Practice Directions, not rules.
- However, post-litigation, the court will examine** the pre-action conduct** of the parties, and any failure to comply is likely to have adverse costs consequences for the non-compliant party.
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Protocols Intended to Aid Settlement
- The purpose of the protocols is to focus the parties on trying to settle the dispute without litigation (as litigation is a last
resort to be avoided whenever possible). - To aid in settlement,the protocols enable the parties to **obtain the information they need to engage in negotiation. **
- If settlement is not achievable, the protocols then **lay the groundwork **for proceedings.
THE PRACTICE DIRECTION ON
PRE-ACTION CONDUCT AND PROTOCOLS
In cases where no specific protocol exists, courts expect litigants to follow the guidelines set out in the Practice Direction on Pre-Action Conduct and Protocols (the ‘Practice Direction’), which sets out pre-action steps**
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The Practice Direction states that:
(1) The claimant should write to the defendant with concise details of the claim.
(2) The defendant should respond within a reasonable time.
The protocol suggests 14 days in a straightforward case and no more than three months in a complex claim. The defen-dant’s reply should confrm whether the claim is accepted,
and if not, the reasons why.
(3) The parties should disclose key documents relevant to the issues in dispute.
(4) The parties should be aware that **the court must give permission before they can rely on expert evidence, **and
the court may limit the fees recoverable. The parties should consider using a single joint expert if expert testimony will be needed.
(5) The parties should consider Alternative Dispute Resolution, notably mediation, arbitration, early neutral evaluation, or ombudsmen schemes. Parties are reminded that, if pro-ceedings are issued, they may be required to provide evidence that ADR has been considered.
(6) If it is not possible to resolve the issue within the pre-action process, the parties are encouraged to take stock of
their respective positions before launching into court action.
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Common Features of the Protocols
Whilst each protocol has diferent specifc requirements, there are some common features. For example, the protocols tend to exhibit the following:
*Template letters, including guidance for the contents of the letter of claim and letter of response;
*Guidelines for pre-action exchange of information and disclosure of documentation relevant to the claim;
*Encouragement to instruct a single joint expert, rather than each party incurring the expense of instructing their own expert
*A reminder of the requirement for the parties to consider one of the methods of Alternative Dispute Resolution;
and
*A proposed time limit for investigation and a bar to commencing proceedings until a stated period has elapsed from sending the letter of claim.
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THE PERSONAL INJURY PROTOCOL
- The personal injury protocol is used primarily for claims in the **fast track **(currently claims up to £25,000), but it does not ap-ply to clinical negligence disputes.
- Even if a claim is one like-ly to be allocated to the multi-track (currently over £25,000), the parties should still pursue the claim in the spirit of the protocol.
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Letter of Claim
personal injury
- *A clear summary of the facts;
- Details of injuries **sustained and the impact that they have on the claimant’s day-to-day life;
- The hospital attended, with relevant reference number; and
- An indication of** financial losses**, such as they are known at this stage.
- In a road traffic accident, the claimant should provide an indication as to whether** a police report** is available.
- The letter should also indicate **the documents **which the claimant proposes to disclose and seeks from the defendant and
- make it clear that the claimant expects a response within** 21 days**.
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Defendant’s Response
Personal Injury
- The defendant must respond within the requested 21 days. If there is no response, the claimant can start proceedings.
- If a response is provided within 21 days, the defendant has three months to investigate the claim, after which they must either admit or deny liability.
- Where there is a denial, reasons must be given, and
- the letter of denial should contain a list of relevant documents likely to be disclosed within any subsequent proceedings
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Experts
Personal Injury
- If the claimant wants to instruct an expert, the protocol provides that the claimant should** strive to choose that expert jointly** with the defendant.
- The claimant is to send a list of
suggested experts to the defendant, who then has** 14 days to disagree**. If the defendant disagrees, each party can instruct their own.
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Failure of the Protocol
personal injury
- If the protocol fails to achieve settlement, then the claimant can issue proceedings. The defendant’s insurer will normally nominate solicitors to accept service
- If there is an admission, the claimant should then send:
*The **medical report **that they rely on; and
*A schedule of past and future expenses (probably provisional) with as much detail as possible. - The claimant must allow** 21 days **to elapse before they com-mence proceedings, to allow for an offer (unless of course limitation is imminent).
THE CONSTRUCTION AND ENGINEERING PROTOCOL
In claims against architects, engineers, and quantity survey-
ors, this protocol should be used instead of the professional negligence protocol. However, the parties can dis-apply the protocol by agreement.
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WHEN IT MAY BE APPROPRIATE TO ISSUE PROCEEDINGS
There are certain situations when there is no option but to issue court proceedings or where the court is unlikely to criticise if** an action is commenced before compliance with a protocol**. The most common situations are:
- Where the end of the** limitation period is close**, and it is necessary to issue court proceedings to avoid the claim becoming statute barred.The claim form should be served, and a stay sought to allow the parties to continue complying with the relevant protocol.
- Where a court order is required to protect or preserve evidence or assets. After issue, the claimant should seek directions from the court to enable the protocol process to be completed.
- Where there is concern that the **defendant may seek to issue proceedings in another country **to avoid the jurisdiction of the courts of England and Wales.
PRE-ACTION APPLICATIONS
- As already noted, the protocols do not have the status of the Civil Procedure Rules; therefore, it is not common for court applications to be required as part of the protocol process.
- However, there are some situations where an application to the court may be appropriate before commencing proceed-ings.
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Pre-Action Disclosure
It may be appropriate for a party to make an application to court for pre-action disclosure if it is felt that disclosure of
documents held by the party are necessary to investigate a potential claim fully. The criteria are as follows:
*The respondent is likely to be a party to proceedings;
*The applicant is likely to be a party to proceedings;
*The documents, or classes of document, requested would be disclosed under standard disclosure rules and
*Disclosure now would** fairly assist** in disposing of the claim without the need to issue proceedings and save
cost.
An application for pre-action disclosure is possible against somebody who is not a party, but only if it will support the claim or **adversely affect **the opponent’s case and is neces-sary to dispose of the matter fairly or to save costs.
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Pre-Action Inspection of Property
It is possible to make an application to inspect property pre-action. To succeed on an application for pre-action inspection, the applicant must show that the property in question:
*Is, or may become, the subject matter of the proceedings; or
*Is relevant to the issues that will arise in relation to those proceedings.
