STAGE 2 - PRE ACTION PROTOCOL Flashcards
What cases will uses pre-action protocols?
1) Debt Claims
2) Personal Injury Claims
3) Professional Negligence Claims
4) Certain RTA Claim
What are the main objectives of the pre-action protocols?
1) encourage the exchange of early and full information about a prospective claim
2) enable the parties to avoid litigation by agreeing settlement of the claim before commencement of proceedings
3) support the efficient management of proceedings where litigation cannot be avoided
4) to ensure costs are incurred are proportionate to the value of the claim and issues in dispute
FAILURE TO COMPLY may lead to sanctions later on, such as cost penalties
What must you adhere to if the case is not covered by an approved protocol?
The Court will expect the parties to act in accordance with the overriding objective and adopt a similar approach.
Parties must adhere to to the relevant provisions in the PRACTICE DIRECTION - PRE ACTION CONDUCT AND PROTOCOLS which contain similar provisions
What are the three personal injury claims?
1) Pre-Action Protocol for Personal Injury Claims (Personal Injury Protocol)
2) Pre-Action Protocol for Low Value Person Injury Claims relating to Road Traffic Accidents (RTA Protocol)
3) Pre-Action for Low Value (Employers Liability and Public Liability) EL/PL Protocol
What information is required in a personal injury claim?
You should obtain sufficient information to advise on the merits of the case:
1) The date, time, location, who was involved, any any witnesses?
2) Whether Police were called, are there criminal proceedings bought against each party?
3) What injuries were suffered? How were these treated? Are there continuing effects or treatment?
4) Has the client suffered any financial loss? or repair costs? medical expense? earnings?
5) details of any security benefits claimed
This will help assess on the value of the claim to determine which protocol applies.
RTA
What is the value limit for Low Value Personal Injury claims (RTA Protocol)
RTA claims with a value of £25,000 or less
(EL/PL Protocol)
What is the value limited for Low Value Employers Liability, Public Liability Claims? (EL/PL Protocol)
EL/PL Protocol applies to employers liability and public liability claims with an upper limit of £25,000.
INSURER has 30 days to respond for employers liabilty, and 40 days to respond public liabilty
What are the 3 stages of the RTA Protocol?
STAGE 1 - Claims Notification Form (RTA1) sent to the insurers via portal; and sent by first class post to defendant directly (RTA2)
Insurer must send acknowledgment next business day after receipt
Insurer has 15 working days from the date claimant sent Claims Notification Form (
What are the 3 stages of the RTA , EL, PL Protocol?
STAGE 1 -
*Claims Notification Form (RTA1) sent to the insurers via portal; and sent by first class post to defendant directly (RTA2)
*Insurer must send acknowledgment next business day after receipt
*Insurer has 15 working days (RTA) 30 days (EL) 40 days (PL) from the date claimant sent Claims Notification Form to:
* Investigate Claim
* Complete and send its response to the Claimant
FAILURE TO COMPLY EXISTS PROTOCOL
* If liabilty denied, or fraud
*Liabilty admitted but contributory negligence alleged
LIABILITY ADMITTED
Stage 1 fixed costs must be paid within 10 working days of response, claim moves to STAGE 2.
STAGE 2 -
*Claimant provides insurer with Stage 2 Settlement Pack (RTA 5) including, medical report, schedule of damages (losses and expense)
*Insurer has 15 days 2 “Initial Consideration Period” to consider Stage 2 Settlement Pack and;
*Accept Claimants Offer; or
*Make counter offer
IF NECESSARY a further 20 days “negotiation period” to consider counter offer, or negotiate an agreement.
COUNTER OFFER ACCEPTED
Insurer has 10 days to pay damages and Stage 2 Costs
NO SETTLEMENT - moves to STAGE 3
STAGE 3 -
*Claimant sends Court Proceedings Pack (RTA 6 and RTA 7) to Defendant to include the parties final offers.
*Proceedings issued under CPR PART 8, After 5 days, Claimant submits claim to the court for a hearing to determine final assessment of damages
*PAPER HEARING
*value of claim assessed on papers already submitted
*Written judgement with reasons
*Damages and fixed costs payable with 10 days
*ORAL HEARING
*Can be requested by either party
*Limited to submissions on existing evidence only
*Damages and fixed costs payable with 10 days
Why is there no doctrine of mistake in the RTA Protocol?
If a claim handler accidentally clicks yes and accepts the offer they cannot rely on ‘genuine mistake’
CASE - DRAPER V NEWPORT
This is to avoid satellite litigation.
What are the main reasons why claims leave the protocol?
1) liabilty is disputed including contributory negligence (failure to wear a seatbelt)
2) The value of claim exceeds £25,000
3) Allegation of fraud
4) Defendants insurer failure to respond in the timescales of 15 days (RTA) 30 days (EL) 40 days (PL)
Upon leaving the RTA protocol, it would then be pursued under the Personal Injury Protocol and the CNF (claims notification form) would be treated as a Letter of Claim.
Fixed costs continue to apply in the RTA protocol, until it enters the multi track.
What is the Pre-Action Protocol for Personal Injury Claims designed for?
Traffic Accidents
Tripping
Slipping and Work Accidents
Claims more than £25,000
What is the process for the Pre-Action Protocol for Personal Injury?
1) Claimant may choose to send an informal letter to the defendant, or insurer to raise awareness of claim. Doing so WILL NOT start the protocol.
2)TWO COPIES of a letter of claim should be sent to the defendant as soon as sufficient information is available to form a realistic claim.
One copy is for the defendant and one is for their insurer.
3) The letter of claim should contain:
* Clear Summary of Events/Facts (how the injury occurred who caused it)
* the nature of the injuries
* Financial losses
* Any ongoing medical treatment, the letter should invite the defendant to help meet the claimants need of rehabilitation
What is the process for the Pre-Action Protocol for Personal Injury?
1) Claimant may choose to send an informal letter to the defendant, or insurer to raise awareness of claim. Doing so WILL NOT start the protocol.
2)TWO COPIES of a letter of claim should be sent to the defendant as soon as sufficient information is available to form a realistic claim.
One copy is for the defendant and one is for their insurer.
3) The letter of claim should contain:
* Clear Summary of Events/Facts (how the injury occurred who caused it)
* the nature of the injuries
* Financial losses
* Any ongoing medical treatment, the letter should invite the defendant to help meet the claimants need of rehabilitation
4) Letter of claim should include which documents should be disclosed by the defendant
5) The defendant should reply within 21 days naming their insurer. This only needs to be ACKNOLEDGMENT of the letter. It triggers the 3 month investigation period.
FAILURE to reply justifies the issue of proceedings without further compliance of the protocol.
6) During those 3 months, the defendant should investigate the claim and state whether liability is denied (IF SO WHAT GROUNTS) or if the claimant contributed to the negligent act (EXPLAIN HOW). The defendant must outline their own version of events.
7) The claimant must respond to the allegations of contributory negligence if alleged before issuing proceedings.
8) The claimant’s solicitor must send a detailed schedule of losses due to the act together with supporting documents as soon as possible.
9) Next step would be to obtain medical evidence. The protocol encourages use of Jointly Selected Medical Expert.
10) Once these steps have been taken, the parties are encourage to consider negotiating with each other before commencing proceedings.
Selection of Medical Experts under Personal Injury Protocol
What must be attached to the particulars of a claim?
A medical Report disclosed to the defendant.
FACT
Where there is rational justification for failing to comply with the pre-action protocol, there will be no adverse consequences.
Where there is failure to comply through slackness or deliberate flouting, the offending party may be penalised in costs.
What ACT requires the court to dismiss the whole of a personal injury claim if the claimant has been fundamentally dishonest?
S57 Criminal Justice and Courts Act 2015 (CJCA 2015).
This requires the court to dismiss the whole of claim if the claimant has been found to be dishonest, where satisfied on the balance of probabilities, in regards to ANY element of the claim,
UNLESS
it would cause the claimant to suffer SUBSTANTIAL INJUSTICE.
What ACT states that it is compulsory for drivers to have insurance for personal injury and loss for third parties?
ROAD TRAFFIC ACT 1988
S143(1)
What ACT states that if an insured driver has an accident, the victim will be compensated by the insured driver’s insurance?
S151 RTA 1998
It would be even more unfair on the victim of the accident if there were to not receive compensation. This requirement is in place for public policy reasons.
What ACT states that notice must be given to insurers within 7 days before or within 7 days of issue of proceedings?
S152 RTA 1998
Failure to do so means the insurer will not be liable to pay out.
What is the purpose of the Motors Insurers Bureau? (MIB)
MIB is here to help people involved in road accidents where the normal routes to compensation might not exist or might be difficult to trace. We will consider claims for vehicle and property damage as well as injury where compensation cannot be claimed from another source such as an insurance company.
Acts as a “safety net”
What are the two agreements MIB propose?
Uninsured Drivers Agreement 2015
Untraced Drivers Agreement 2017
These cover personal injury and fatal road accidents and includes claims for loss and property damage.
What is the Uninsured Drivers Agreement 2015?
The Uninsured Drivers’ Agreement provides a framework within which the MIB provides compensation to innocent victims of accidents with uninsured drivers in Great Britain.
What is the Untraced Drivers Agreement 2017?
The new Untraced Drivers Agreement comes into effect for accidents occuring on or after 1 March 2017. It provides a route for the victims of ‘hit and run’ accidents to claim compensation for the injury or damage caused by a person who cannot be traced.
What common categories fall into debt claims?
*Unpaid invoices for goods sold and delivered
*Unpaid invoices for services provided
*Money borrowed and not repaid
*Hire Charges
They may be bought against companies or individuals.
The claimant will want to recover the debt with as little expense as possible to prevent recovery being uneconmic.
What must you consider when taking instructions on a debt claim?
1) How the debt arose. (date of contract, details of obligations, invoices, evidence)
2) How much is owed
3) Details of how the sum of arrears fell due? Have reminders been sent? Has the debtor given any reasons for non-payment? Do they have any merit? (POSSIBLE DEFENCE?)
4) Whether the matter is capable of resolution by means of ADR.
THIS MUST BE CONSIDERED even when not applicable to the claim.
What must you consider AFTER taking instructions on a debt claim?
1) Remind your client to keep you informed of any further communications, retain all documents that arrive in the future
2) make enquiries about financial standing of the debtor
Limited companies - conduct companies house search to check most recent filed accounts OR; Search Royal Courts of Justice to check another creditor hasn’t already issued proceedings
Individual’s -
Check whether the client has information on the debtors assests
Seek a status report from a firm of enquiry agents (expiran)
Search at Land Registry to ascertain if the debtor owns the land if any charges against it.
What pre action protocol covers debts?
Pre-Action Protocol for Debt Claims (PPDC)
It does not apply to business to business debts.
Applies to any business, including sole traders, public bodies, which bring a claim against an individual or sole trader.
What are the FOUR AIMS of the Pre-Action Protocol for Debt Claims (PPDC)
1) Encourage communication between parties at a very early stage
2) Enable them to achieve settlement without the needs of court proceedings
3) To encourage the parties to act in a reasonable and proportionate manner, having regard to the size of the debt.
What are the FOUR AIMS of the Pre-Action Protocol for Debt Claims (PPDC)
1) Encourage communication between parties at a very early stage
2) Enable them to achieve settlement without the needs of court proceedings
3) To encourage the parties to act in a reasonable and proportionate manner, having regard to the size of the debt.
4) To support the efficient management of court proceedings where these prove necessary
FACT
All other claims which fall outside the protocols will be dealt with under the Practice Direction on Pre-Action Conduct and Protocols
PDPAC
For example: Business to Business debts
What must the parties comply with when commencing a claim under the PDPAC protocol?
1) ONLY reasonable and proportionate steps should be taken by the parties to resolve the matter, and costs incurred should be proportionate
2) The claimant writing to defendant must include a summary of facts
3) Defendant must respond in a reasonable time frame, 14 days in a straight forward claim. three months if it is complex but must state the reasons why.
4) parties must disclose key documents
Expert evidence is only required with the courts permission. as most disputes can be resolved without this
