Resolving Disputes Through Civil Claims

Question 1

What is the purpose of pre-action protocols and the Practice Direction on Pre-Action Conduct and Protocols (PDPAC)?

Answer 1

To encourage early exchange of information between parties, promote settlement without litigation, and ensure efficient proceedings if litigation becomes necessary. They aim to make litigation a last resort and encourage alternative dispute resolution (ADR)

Question 2

What are the main steps required by the PDPAC before starting court proceedings?

Answer 2

○ The claimant should send a letter to the defendant with concise details of the claim.
○ The defendant should respond within a reasonable time, indicating whether the claim is accepted and why if not.
○ Both parties must disclose key documents.
○ Parties must consider negotiation or other forms of ADR.
○ Parties should review their positions and narrow the issues in dispute before issuing proceedings

Question 3

What are the potential consequences of failing to comply with pre-action protocols or the PDPAC?

Answer 3

The court may impose sanctions such as:
○ The party at fault paying some or all of the opponent’s costs.
○ Depriving a claimant at fault of some or all interest on damages.
○ Requiring a defendant at fault to pay a higher rate of interest on damages.
○ Contempt of court proceedings for knowingly making a false statement

Question 4

What is a “cause of action”?

Answer 4

It is the legal basis of a claim, such as breach of contract or negligence

Question 5

What is the general limitation period for claims founded on contract or tort?

Answer 5

Six years from the date the cause of action accrues. The cause of action accrues when the breach of contract occurs or when the tort is committed, including when damage occurs in negligence

Question 6

How does the limitation period work for cases involving latent damage in negligence claims?

Answer 6

The limitation period is either six years from the date of the cause of action or three years from the date of knowledge of the damage, whichever is later, but no more than 15 years after the negligent act or omission

Question 7

What should a solicitor consider when identifying the parties to a claim?

Answer 7

○The correct spelling and title of the parties.
○Whether an employee and employer should both be sued in cases of vicarious liability.
○The legal capacity of the defendant, such as an individual, sole trader, partnership, LLP, or limited company.
○Whether a litigation friend is needed for a child or protected party

Question 8

What are some key steps a solicitor should take before issuing proceedings to determine if a claim is viable?

Answer 8

○Confirm the claim is not statute-barred by checking limitation periods.
○Identify all potential parties.
○Assess the defendant’s ability to pay.
○Analyse the merits of the case.
○Ensure pre-action protocols and practice direction are followed

Question 9

What is the difference between a specified and an unspecified claim?

Answer 9

○A specified claim is for a fixed amount of money, usually a debt.
○An unspecified claim requires the court to investigate and determine the amount of money payable, such as damages claims. A claim that is a mixture of specified and unspecified amounts is treated as unspecified

Question 10

What should be considered in a case with a foreign element?

Answer 10

○ Determine which country’s laws apply to the claim, which is usually done by a clearly worded clause in a contract specifying the governing law.
○ If no governing law has been agreed, default provisions will come into effect.
○ Be aware that the laws of Scotland and Northern Ireland are distinct from those of England and Wales