Syllabus Area 3 - Pre Action Protocols Flashcards
What are PDPA used for?
To set a standard of behaviour to follow
When should be used?
Before proceedings: if there is a specific one to follow, use that one, if there is not, parties should exchange information and use the generalised PDPA.
What are the main objectives of the general PDPA?
Courts expect parties to exchange sufficient information to understand each others positions, should understand how to proceed, how to settle, consider ADR, support the efficient management and reduce costs by resolving dispute.
Why should the PDPA be used in a proportionate way?
It should NOT be used as a tactical advantage over another party and should only be used where it would be reasonable and proportionate to do so in line with costs as costs recoverable will be considered on proportionate basis.
What are the steps before issuing a claim before court? (general PDPA)
C writes to D with concise details of claim: summary, value and remedy. Then, D responds in a reasonable time limit (3 months for complex, 14 days for straightforward) accepting or denying liability. D’s response may include a counterclaim + evidence.
When should an expert be used?
Court must give permission.
When will an expert be appointed?
If it is a low value claim, a singular joint expert used and costs can be split. Court may limit fees recoverable.
What is stocktake?
Where parties review their position ,stregnths and weaknesses of their case, review all evidence to see if litigation can be avoided or at least narrow disputes
Does PDPA affect limitation?
PDPA does not act as a time stop or limitation clock. Limitation Act 1980 always applies
What if limitation is about to expire?
if limitation about to expire, start proceedings even if PDPA not complied with as can order stay of proceedings to comply for better position for C
What happens if ADR not considered?
Conduct may be considered unreasonable.
What happens if protocol not followed?
Considered unreasonable conduct and may order costs
What if C or D changes claim/defence?
Substantial change in claim may mean that considered unreasonable
Is Letter of Claim and response the same status as SOC?
No, cannot be sanctioned.
How can D’s response time limit be extended?
It can be varied IF D has little knowledge of claim or origin of claim is unclear.
What can any pre-action applications be applied for?
Pre-action disclosure can be but not a pre-issue ruling
What are the general aims for PDPA personal injury?
This is to encourage disclousre of information, pre-action investigation, avoid litigation by agreeing settlement, support efficient time management and prompt medical ehab to address C’s needs.
What kind of claims use this PI PDPA?
Fast track claims within £25,000 including property damage. It does not include claims for RTA, employers/public, clinical dispute, disease/illness involving PI.
What is allocated to small track? (general and PI)
PI claims under £5,000 and £10,000 generally
What should be done if nearing upper limit of track?
C should notify D
What happens if falls outside of this protocol?
Use Part 7 proceedings
What is the usual steps taken for personal injury?
- LON about claim for D to notify the insurer. Parties consider rehab and on-going needs for C. 2. D to acknowledge in 14 days. 3. Letter of claim is then issued. 4. D must acknowledge LOC within 21 days. 5. D investigates and sends Letter of Response up to 3 months.
How long does D have to investigate?
3 months
How do we make sure details are dealt with early on?
C’s legal rep should notify D before issuing proceedings if they can and the court should consider a stay of proceedings/extension to exchange information if they can.
What does PDPA say about LIP?
If no LIP is given, person must try follow protocol as best they can.
What is the Letter of notification’s use?
It assists D of any relevant information determining liability and suitability for interim payment. It also allows D to notify insurer ASAP about claim especially if D has no knowledge/it is a significant claim.
When should a Letter of Notification be acknowledged?
Within 14 days.
What should a Letter of Claim include?
Value of claim for D to assess, liability and nature of injuries sustained on C.
When can CNF be used?
Can be used instead of LOC if claim no longer continues under low value protocol e.g it is now higher value.
Who should receive LOC?
X1 copy to D and x1 copy to insurer.
What else should C give D in a PI claim?
DOB AND NI
What should be included in Letter of Response?
Liability, admissions/denials and should supply their version of events + evidence.
When should response to LOC be drafted for PI?
21 days after letter identifying insurer.
What happens if wrong D involved?
If wrong D involved or omissions found, C should be notified by D or insurer.
What happens if no response given to LOC?
C entitled to issue proceedings.
How long does D have to respond if D out of county?
He has 6 months and 42 days to respond.
What happens if C unsure how to respond after seen response?
Should tell D unsure and tell him if delaying proceedings.
Why should we early disclosure of docs?
Narrow dispute = less time in court = less money used.
How does D/C know which docs?
C’s legal rep will assist with which docs relevant and which are not.
What docs can be disclosed?
Any that are in LOC/response.
What happens if further disclosure needed?
Need to apply under Part 31.
What happens if D tries to destory evidence?
Has a duty to preserve evidence otherwise seen as abuse of court process.
How is an expert selected for PI?
Protocol encourages joint selection. D receives a list of experts/solicitor may organise through medical agency. Parties both have 14 days to object experts.
What happens if D objects to experts?
If D objects to all, parties can choose from their own choice. If D does not object though, he is not entitled to his own medical expert/report without court permission or C’s permission.
Can questions be asked in expert report?/how long do they have?
Yes, up to 28 days of report only for clarification > there may be cost involved which is on the party whom orders the questions.
What happens if C does not disclose report?
Does not need to as it can remain legally privileged.
Can parties order further expert report?
Yes with a permission of court but the costs may not be recoverable.
What happens if D admits liability before proceedings?
Can do Part 36 offer but C must send medical report and schedule of past/future losses/expenses
If settling, what must C do?
Delay proceedings for 21 days to allow settlement.
What is obliged on parties?
They must consider ADR > if unwilling, this will be considered unreasonable conduct.
Are there specific steps for ADR?
No, but it is encouraged/however it is not forced on parties but may be considfered unreasonable refusal.
Do they need to evidence ADR?
Yes, court may ask for evidence of engagement of ADR plus reaosns why if they didn’t use.
How do we quantify loss?
By using schedule of past/future losses expenses.
What does court take into account in terms of non-compliance with protocol?
Timing/timetable which is reasonable, not engaging in ADR, not providing sufficient information to part, unreasonable response to ADR BUT overall how this effects the parties
What can court do if non-compliance with protocol?
Order a stay, grant relief from sanctions or order sanctions
What are the sanctions of non-compliance?
Depriving the party at fault of interest e.g C of high interest and D of low interest.
When does the court consider non-compliance?
Case management meeting, directions meeting or orders for costs > parties may put in directions questionnaire whether they complied.
What are reasonable responses for non-compliance?
If limitation about to expire and it may be best to issue proceedings to preserve C’s position OR if urgency of proceedings e.g ordering search for D because destroying of evidence.
What happens if silence in face of invitation of ADR?
Unreasonable conduct and may have to pay additional court fees.
What does court expect in terms of settlement?
To be considered the whole way through the claim even if proceedings started.
How can parties negotiate to settle? I.e what methods?
Discussion, negotiation, mediation, ENE, arbitration
What are the alternative methods of resolution even if no proceedings issued?
ENE, medication, arbitration, negotiation, discussion
What happens if limitation HAS expired?
if limitation has expired, D may use this as a defence against C.
What does court consider a failure to comply?
Court considers failure if: not providing sufficient information to enable the objectives of PD, not acting within time limit/reasonable period, unreasonably refusing adr OR failing to respond to use ADR
What will the court order if fails to comply with PDPA?
Court may order: relieving parties of their obligations to comply with PDPA, staying proceedings to allow compliance, applicable sanctions
What types of sanctions may it order?
Types of sanctions: party at faults pays costs of proceedings, other parties costs or costs on indemnity basis, deprive interest of C, deprive interest of D
What has been reviewed about the protocol and changed?
Now, RTA Small claims introduced - damages for PI under to £5,000 under small claims
