Preaction Flashcards
What are precaution protocols
Protocols providing Guidance for pre litigation conduct I.e steps each party takes before a legal action
What is the goal of preaction protocols
To settle the dispute without litigation
To aid settlement
To provide information required for negotiation with a view to settle
Name consequences if failing to comply with pre-action conduct
Sanctions
A stay of proceedings to allow for the step or practice direction to be complied with
When do you use the Practice Direction on PreAction Conduct and Protocols
Where no specific protocol exists
Six key elements of Practice Direction on PreAction Conduct and Protocols
Claimant should write to defendant with concise details of claim
Defendant should respond in reasonable time confirming acceptance or reasons for rejection of claim. 14 days for straightforward case, max 3 Months in complex claim
Parties should disclose key documents relevant to issues in dispute
Expert evidence required court approval, fees recoverable may be limited and parties should consider single joint expert if expert testimony required
Parties should consider ADR
If pre-action fails, Parties encouraged to take stock of respective positions before starting court action
Response time for letter of claim in PI claim
21 days
What happens if the defendant does not respond within 21 days to a letter of claim in PI protocol
Claimant can start court proceedings
How long does defendant have to investigate after responding to letter of claim in PI protocol
3 months, with a denial or reasons
Protocol for claims against engineers, architects and quantity surveyors
Construction and engineering protocol
Sanctions for failure to comply with PreAction conduct
Order to pay costs, full or partial
Order to pay damages with interest at higher rate
Court may deprive claimant of interest, restrict rate or period of interest
When can you issue proceedings without PreAction conduct
When end of limitation period is close
When court order is required to protect or preserve evidence or assets
Where defendant may issue proceeding in other country to avoid jurisdiction of EW
Types of Pre action applications
PreAction disclosure
PreAction inspection of property
When can you apply for PreAction disclosure
If documents held by other party are necessary to investigate claim fully
Respondents is likely to be a party to the proceedings
Applicant is likely to be party to proceedings
Documents would be disclosed under general disclosure rules
Disclosure now would help dispose claim without need for proceedings and hereby save costs
Can applicant of pre disclosure be against nonparty to proceedings
Yes it supports claim or adversely affects defendants case and necessary to settle matter and save costs
Who pays for costs in a failed PreAction conduct where claimant does not proceed to court
It is unlikely defendant can recover costs.
