Preliminary Litigation Steps Flashcards
What is a pre-action protocol?
Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before proceedings for particular types of civil claims
What is the Practice Direction of Pre-Action Conduct and Protocol (PDPACP)?
Safety net provision - for any matter type the does not have an associate pre-action protocol, parties are expected to follow guidance in this Practice Direction instead
What four primary considerations are there at the preliminary stages of litigation?
- 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 proper claimants and defendants are, and the nature of their financial circumstances
What must be considered with regards to jurisdiction?
Must make sure the the courts of England and Wales have jurisdiction to hear the dispute
What must be considered with regards to governing law?
Must make sure that the dispute is governed by the law of England and Wales
What effect will the contract having an express declaration have on what law governs the dispute?
That law will be the governing law
What will the governing law be for a contract where there is no express provision and the contract’s parties are within the EU?
Sale of goods contract: applicable law is that of the seller’s habitual residence
Provisions of services contract: applicable law is that of the service provider’s habitual residence
Contract relating to land: applicable law is that where the land is situated
Distribution contract: applicable law is that of the distributor’s habitual residence
If none of the above contracts, than habitual residence of party required to effect characteristic performance
What effect will manifestly more closely connected have on governing law of EU contract disputes?
Courts can apply a different’s country’s law if the contract is manifestly more closely connected with that country
What law will govern a tort dispute in the EU?
- agreement after the event
- agreement before the event if both parties pursuing commercial activity and freely negotiated choice of law
- if the claimant reside in the same country then there
- if not, where the damage has occurred
What effect will manifestly more closely connected have on governing law of EU tortious disputes?
Courts can apply a different’s country’s law if the tort is manifestly more closely connected with that country
How will the governing law be decided for claims outside of the EU?
If no express declaration, then governing law will need to be settled by the court by way of a preliminary issue before proceedings are commenced
How will proceedings be commenced if there is a clause that specifies the location of the court to hear the dispute?
Proceedings should be commenced there
What is the general rule as to commencing proceedings where there is no express declaration?
Proceedings will be issued in local court to where defendant is domiciled, if individual or registered office if company
What happens with commencing proceedings if the defendant who is habitually resident outside of E and W, visits England and Wales?
Claim can be heard here - visiting country taken to mean that the submit to court’s jurisdiction
What effect will issuing a claim outside of the limitation period have?
It will give D an absolute defence to that action
What is the limitation period for a contract claim?
Six years from the date of breach of contract
What is the limitation period for a tort (excluding personal injury and latent damage cases)?
Six years from date the damage occurs
What is the limitation period for personal injury claims?
Three years from the cause of action or date of knowledge of the person injured - whichever is later
What is the limitation period for latent damage cases?
Six years from the date when damage occurred.
Three years from the date of knowledge (but claim must be brought within 15 years of negligent act)
When may the courts allow an extension to the limitation period?
In exceptional circumstances eg:
- parties are engaged in alternative dispute resolution that has not concluded by limitation date
- personal injury cases where the prejudice to the claimant in not being able to bring the claim substantially outweighs the detriment to the defendant
What would the party seeking the extension have to do?
They would have to apply to court, setting out reasons and any available evidence to support those reasons in the application
Why is important for the solicitor to identify the legal cause of action?
As the legal cause of action if the legal basis of any issuing of proceedings.
No legal cause of action = no claim
What will have to happen if the defendant or the claimant if they lack capacity or are a minor?
They may need a litigation friend to conduct the litigation on their behalf
What would happen if parties do not comply with pre-action protocols?
They may later be penalised by the court
