Preliminary Litigation Steps

Question 1

What is a pre-action protocol?

Answer 1

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

Question 2

What is the Practice Direction of Pre-Action Conduct and Protocol (PDPACP)?

Answer 2

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

Question 3

What four primary considerations are there at the preliminary stages of litigation?

Answer 3

• 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

Question 4

What must be considered with regards to jurisdiction?

Answer 4

Must make sure the the courts of England and Wales have jurisdiction to hear the dispute

Question 5

What must be considered with regards to governing law?

Answer 5

Must make sure that the dispute is governed by the law of England and Wales

Question 6

What effect will the contract having an express declaration have on what law governs the dispute?

Answer 6

That law will be the governing law

Question 7

What will the governing law be for a contract where there is no express provision and the contract’s parties are within the EU?

Answer 7

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

Question 8

What effect will manifestly more closely connected have on governing law of EU contract disputes?

Answer 8

Courts can apply a different’s country’s law if the contract is manifestly more closely connected with that country

Question 9

What law will govern a tort dispute in the EU?

Answer 9

• 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

Question 10

What effect will manifestly more closely connected have on governing law of EU tortious disputes?

Answer 10

Courts can apply a different’s country’s law if the tort is manifestly more closely connected with that country

Question 11

How will the governing law be decided for claims outside of the EU?

Answer 11

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

Question 12

How will proceedings be commenced if there is a clause that specifies the location of the court to hear the dispute?

Answer 12

Proceedings should be commenced there

Question 13

What is the general rule as to commencing proceedings where there is no express declaration?

Answer 13

Proceedings will be issued in local court to where defendant is domiciled, if individual or registered office if company

Question 14

What happens with commencing proceedings if the defendant who is habitually resident outside of E and W, visits England and Wales?

Answer 14

Claim can be heard here - visiting country taken to mean that the submit to court’s jurisdiction

Question 15

What effect will issuing a claim outside of the limitation period have?

Answer 15

It will give D an absolute defence to that action

Question 16

What is the limitation period for a contract claim?

Answer 16

Six years from the date of breach of contract

Question 17

What is the limitation period for a tort (excluding personal injury and latent damage cases)?

Answer 17

Six years from date the damage occurs

Question 18

What is the limitation period for personal injury claims?

Answer 18

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

Question 19

What is the limitation period for latent damage cases?

Answer 19

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)

Question 20

When may the courts allow an extension to the limitation period?

Answer 20

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

Question 21

What would the party seeking the extension have to do?

Answer 21

They would have to apply to court, setting out reasons and any available evidence to support those reasons in the application

Question 22

Why is important for the solicitor to identify the legal cause of action?

Answer 22

As the legal cause of action if the legal basis of any issuing of proceedings.

No legal cause of action = no claim

Question 23

What will have to happen if the defendant or the claimant if they lack capacity or are a minor?

Answer 23

They may need a litigation friend to conduct the litigation on their behalf

Question 24

What would happen if parties do not comply with pre-action protocols?

Answer 24

They may later be penalised by the court

Question 25

What is the overall aim of the pre-action protocol?

Answer 25

To make the parties come to an early resolution and that litigation is only ever a last resort

Question 26

What are the objectives of the pre-action conduct?

Answer 26

• understand each other’s position
• make decisions about how to proceed
• try to settle the issues without proceedings
• consider a form of alternative dispute resolution to assist with settlement
• support the efficient management of proceedings
• reduce the costs of resolving the dispute

Question 27

What steps should be taken under any pre-action protocol?

Answer 27

1. the claimant should write to the defendant with concise details of the claim setting out basis of claim, summary of facts, what claimant wants and if money - how it is calculated
2. D should respond to claimant’s letter within a reasonable time - 14 days in straightforward case and no more than three months in a very complex one

D’s response should detail if they accept claim or if they do not accept it and why, with explanation as to facts and parts of the claim which are disputed and any counterclaim

3. Parties should disclose key documents relevant to dispute

Question 28

What are the 13 different pre-action protocols?

Answer 28

• personal injury
• resolution of clinical disputes
• construction and engineering
• defamation
• professional negligence
• judicial review
• disease and illness
• housing disrepair
• possession claims by social landlords
• possession claims for mortgage arrears
• dilapidation of commercial property
• lo-value personal injury road traffic accident claims
• low-value personal injury employer’s liability and public liability claims

Question 29

What will the court consider when looking at whether the parties have complied with pre-action protocols?

Answer 29

Court will consider whether the parties have complied with the substance of the pre-action protocol

Question 30

What are some key requirements of the pre-action protocol?

Answer 30

• the parties exchange key information
• parties should consider ADR
• parties should look to instruct joint expert if expert is required
• parties should take reasonable and proportionate steps to resolve the matter

Question 31

When will the parties not need to comply with the pre-action protocol?

Answer 31

• where the application is without notice meaning that it is made with the intention of giving the defendant no warning, such as a freezing order on assets to avoid them being disposed of
• where the statutory or contractual limitation period is about to expire and compliance with the pre-action conduct requirements would mean that the defendant would have an absolute limitation defence against the action

Question 32

What penalties will parties be potentially liable for for failing to comply with the substance of the pre- action protocol?

Answer 32

• an order that the party at fault pays the costs of the proceedings or part of the cost 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 interest on that sum for a specified period and or awarding interest at a lower rate than otherwise would have been the case
• if the party at fault is the 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 10% above base rate) than the rate otherwise would have been

Question 33

What is the indemnity basis for costs?

Answer 33

Any dispute between the parties as to value of those costs will be resolve in favour of the receiving party and there is no requirement for costs sought to be proportionate