Resolving a Dispute through a Civil Claim - Pre-Action Conduct Flashcards
Your client is a company who is intending to commence proceedings against a partnership claiming professional negligence. The claim is for £500,000. As required, the company and the partnership have been following the Professional Negligence Pre-action Protocol. Recently, however, the solicitors for the potential defendant partnership were 2 days late in responding to the letter of claim without seeking an extension or offering any explanation. Which of the following statements best describes what your client should do, assuming it wishes to commence proceedings as soon as possible?
The company should ignore the fact that the partnership was 2 days late and carry on complying with the Pre-action Protocol.
Parties are expected to comply with the spirit of the protocols and the court will not be concerned with trivial breaches (paragraph 13 PD on Pre-action Conduct)
A client, who was born in March 2007, suffered personal injuries in December 2021 when she was injured on holiday at a campsite. The client wishes to bring a claim.
What is the correct advice for the client to be given in relation to the expiry of the limitation period in these circumstances?
It will expire in March 2028.
This date assumes the client must bring the claim within the usual three-year period from the date when the cause of action accrued. However, here the client was under a disability at the date of the accident when the cause of action accrued as she was a child under the age of 18. Section 28(1) and (6) of the Limitation Act 1980 provides that in these circumstances a claimant may bring an action at any time before the expiration of three years from the date when she ceases to be under a disability (that is, attained 18 years of age). The client will become 18 in March 2025 and will have three years from that date to bring her claim, ie by March 2028.
A solicitor is reviewing what action the court may take or what sanctions the court may impose if a party fails or the parties fail to comply with the relevant Pre-Action Protocol and/or the Practice Direction—Pre-Action Conduct.
What would be the correct conclusion for the solicitor to draw?
If the defaulting party is a defendant, interest may be ordered on any sum awarded to the claimant at a higher rate than would otherwise have been ordered.
Although it is correct that the court may impose sanctions which may include an order that the defaulting party pays costs on an indemnity basis, the court always has a discretion in relation to costs and therefore it is wrong to say that the court must make this order (Practice Direction—Pre-Action Conduct and Protocols, para 16).
A client wishes to pursue a claim for breach of contract with a value of approximately £20,000. Expert evidence is likely to be required to determine the issues. There has been no correspondence with the proposed defendant, but the client has had several discussions with the proposed defendant on a number of occasions without resolution and is now anxious to proceed with litigation.
What is the best step or sequence of steps for the client now to take?
Write to the proposed defendant, clearly setting out the nature of the claim, the remedy sought and proposals for ADR, inviting a response within a reasonable period of time.
This would be in breach of para 7 of the Practice Direction—Pre-Action Conduct and Protocols which clearly states that if it is necessary to obtain expert evidence, particularly in low-value claims, then the parties should consider using a single expert, jointly instructed by the parties. This, along with paras 2 and 3 and 6 of the practice direction, makes it clear that the correct course of action is to approach the proposed defendant first and consider jointly instructing a single expert.
