SA3 Pre-Action Protocol

Question 1

How should PAPs be regarded?

Answer 1

Protocols are codes of best practice which should be generally followed but do not need to be slavishly followed.

Question 2

Before proceedings, court will expect parties to exchange info about their case for what reasons?

Answer 2

So they can:
* Understand each other’s positions.
* Make decisions about how to proceed.
* Attempt to settle without the need to issue proceedings.
* Consider ADR to assist with settlement.
* Support the efficient management of proceedings in the event that settlement cannot be reached, and
* Reduce the costs of resolving the dispute.

Question 3

Where there is no particular protocol, when does the practice direction require parties to exchange information?

Answer 3

The pre-action stage.

There is no definition given to proportionality in this context. It is a matter of common sense.

Question 4

What should the letter before claim set out?

Answer 4

What the claim is about:
* Summary of facts
* Basis of claim (cause of action).
* Details of remedy claimed (including how damages have been calculated).

Question 5

What should the response to the letter before claim contain?

Answer 5

If the claim is admitted or disputed (in whole or part).

If disputed, clear reasons must be given.

If D is making a cross claim, details of this.

Question 6

Which ‘key documents’ should be disclosed pre-action according to the Practice Direction?

Answer 6

Depends on the case but those relating to liability and quantum and to which there can be no objection to disclosing at this early stage in the dispute.

Question 7

Where an expert is jointly selected, who pays/decides what to do with the report?

Answer 7

After all sides agree that the expert is reputable in the field, one party instructs, report sent to that party and they can decide what to do with it.

That party will be liable for fees.

If they share with the other side, it usually means the other side will not be given permission by court to instruct their own expert.

Question 8

Where an expert is jointly instructed, who pays/decides what to do with the report?

Answer 8

All parties instruct, are jointly liable for fees and the report is sent to all parties.

Question 9

What type of expert does the PD direct the parties to consider?

Answer 9

A single, jointly instructed expert (especially if the claim is low-value).

Question 10

What can the court do if a party doesn’t comply with the PAPs/PD.

Answer 10

Court can take into account when making case management directions e.g. stay the proceedings to allow the parties to comply.

Can penalise non-compliance in costs:
* Award interest at a higher rate (if D is in default).
* Deprive a party of interest.
* Award interest at a lower rate where defaulting party was C.
* Order defaulting party to pay costs (including indemnity based costs).

Question 11

When does the PI PAP apply?

Answer 11

To PI cases up to £25k.

The spirit, if not the letter, of the PAP should be applied in cases >£25k.

Question 12

To which type of PI claims does the PAP not apply because they have their own PAPs?

Answer 12

• Road traffic
• Employers liability
• Public liability
• Clin Neg resulting in PI
• Disease and illness claims

Question 13

What is the purpose of the PI PAP?

Answer 13

To avoid litigation and use ADR to try and settle the agreement.

Parties encouraged to exchange ‘early and full information’ about the dispute.

To promote the provision of medical or rehabilitation treatment to address the needs of C at the earliest possible opportunity.

Question 14

If a party considers that any part of the PAP is not appropriate to their case, what should they do?

Answer 14

Can be varied to suit the needs of the case, but party should be prepared to explain to the court why it hasn’t been followed/varied.

Court will look at whether substance has been followed rather than minor breaches.

Question 15

Does the PI PAP alter the limitation period?

Answer 15

No.

Does not alter the statutory limitation period for starting court proceedings.

Question 16

PI PAP: What is the time limit for D to acknowledge a letter of notification?

Answer 16

14 days.

Question 17

According to the PI PAP, who should the letter of claim be sent to?

Answer 17

a) D
b) D’s insurer (can send 2 copies to D – D should pass it onto their insurer within 7 days).

Question 18

PI PAP. What details should be included in the letter of claim?

Answer 18

• The facts and circumstances of the accident.
• How D is alleged to be liable.
• The injuries suffered by C.
• The effect on C’s life.
• Details of financial losses including loss of learnings.
• Can also set out categories of suggested docs C considers relevant and would like D to disclose.

Question 19

a) PI PAP: What is the time limit for D to respond to the letter of claim?

b) What must they give notice of?

c) What must they inform C of?

Answer 19

a) 21 days.

b) Their insurer.

c) If there are any omissions in the letter of claim or if they consider another party to be at fault.

Question 20

Once D has confirmed the identity of their insurer, what must C provide?

Answer 20

NI number and DOB.

These should not be included in the original letter of claim.

Question 21

What happens if D doesn’t respond to the letter of claim within the time limit.

Answer 21

If D doesn’t respond in 21 days, C can proceed immediately to issue proceedings without complying with the rest of the protocol.

Question 22

What is the time limit for D serving a SUBSTANTIVE response to the letter of claim from the date it acknowledges the letter of claim, indicating whether it admits liability?

Answer 22

3 months (longer if out of the jurisdiction).

Question 23

PI PAP – how long will D (insurer) have from date of acknowledgement of Letter of Claim to investigate?

Answer 23

3 months (6 if outside the jurisdiction).

Question 24

If D admits liability, what should be included within the response to the letter of claim?

Answer 24

Documents in relation to quantum.

Question 25

If D denies liability, what should be included within the response to the letter of claim?

Answer 25

Reasons for denial, and relevant documents.

Question 26

What should happen if there is a pre-action dispute about disclosure?

Answer 26

An application can be made to the court for pre-action disclosure if necessary.

Question 27

PI protocol encourages joint selection of expert reports on liability and quantum up to cases of which value?

Answer 27

£25k.

Question 28

For a jointly selected expert, C provides a list of suitable experts to D. what is the time limit in which D can object to one or more?

Answer 28

14 days.

Question 29

For a jointly selected expert, what happens when C provides a list of suitable experts to D and D rejects them all?

Answer 29

Each side can instruct their own expert.

Question 30

For a jointly selected expert, where D does not object to an expert who is then instructed by C, under which circumstances can D rely on their own expert evidence?

Answer 30

Only if:
a) C consents or
b) The court gives permission or
c) The claimant’s expert amends the report and C is not prepared to disclose the original report.

Question 31

If C discloses the report of a jointly selected expert, what is the time limit in which each side can ask questions of the expert to seek clarification of matters within the report?

Who are the answers sent to.

Answer 31

28 days.

Simultaneously to each party.

Question 32

Who bears the cost incurred by the expert responding to questions?

Answer 32

The questioning party.

Question 33

Where a C chooses not to disclose their expert report with D, under which conditions is the court likely to grant permission for another expert to be instructed?

Answer 33

If C bears the cost of the original expert’s report in any event (even if C wins the case and costs order made against D).

Question 34

PI PAP ADR – if liability is admitted, what should C send to D?

Answer 34

Any medical reports.
A schedule of past/future expenses and losses, with a view to reach settlement of quantum.

Question 35

PI PAP ADR – where liability is admitted and unless limitation is due to expire, how long should C allow before issuing proceedings after the disclosure of documents to allow time for settlement discussions?

If settlement is not reached, what should parties do before issuing proceedings?

Answer 35

a) 21 days.
b) Parties should do a stocktake to ascertain if the issues have been narrowed.

Question 36

Where does the Practice Direction apply?

Answer 36

Where no PAP has been approved by the Master of the Rolls.

Question 37

What may a person who knowingly makes a false statement in a PAP letter/any other document prepared in anticipation of legal proceedings face?

Answer 37

Contempt of court.

Question 38

Which steps are parties required to take to identify, narrow and resolve the legal, factual or expert issues in accordance with a PAP/PD?

Answer 38

Only those which are reasonable and proportionate.

Question 39

What type of pre-action costs are recoverable as part of the cost proceedings?

Answer 39

Only those which are proportionate.

Question 40

If a party makes an admission pre-action, can they later withdraw this?

Answer 40

An admission made by any party under this Protocol may well be binding on that party in the litigation.

CPR 14.1 – courts have power to allow a party to withdraw an admission but the burden rests on the party making the application.

Question 41

Can parties make substantial changes to things stated in their letter of claim?

Answer 41

Letters of claim are not intended to have the same status as statements of case.

Would defeat the purpose of protocols if a party were penalised for subsequently clarifying his/her claim.

However, parties should give reasons for making substantial changes (otherwise could amount to ‘unreasonable conduct’.

Question 42

Do PAP require parties to take certain steps to settle?

Answer 42

Most don’t, but all encourage early settlement discussions and use of ADR.

Question 43

Are litigants in person obliged to comply with the PI PAP?

Answer 43

Should still comply, as far as possible.

Question 44

When might the court decide there has been failure to comply with a PAP?

Answer 44

Where a party has:
* Not provided sufficient info for objectives of PAP to be met.
* Not acted within a time limit set out in a relevant PAP or within a reasonable time period.
* Unreasonably refused ADR/failed to respond at all to an invitation to do so.

Question 45

Where there has been non-compliance, with a PD/PAP, what can the court order?

Answer 45

• The parties are relieved of the obligation to comply/further comply with the PAP or this PD.
• The proceedings are stayed while certain steps are taken to comply.
• Sanctions are to be applied.

Question 46

If there is a claim for both PI and Property damage, does the PAP apply?

To which part?

Answer 46

Yes – to the entirety of the claim (<£25k).