T1 and T3 : General Matter and Pre-Action Conduct

Question 1

What is the Overiding Objective to enable the court to deal with cases justly and proportionate cost (CPR 1.1(1)

Answer 1

Deal with cases “justly and at proportionate cost”:

-Ensure parties are on equal footing and can participate fully in proceedings

-Save expense

-Deal with cases that proportionate to :

money involved, important to case, complexity of the issues, financial position of each party

-Ensure case dealt expeditiously and fairly

-Allot court resources in appropriate share

Question 2

What are the Pre-commencement of proceedings what power court have? (CPR 1.4)

Answer 2

-CPR 25.1(1)(i) and (j) and CPR 31.16- Order for pre-action disclosure

-CPR 1.4(2)(e) and CPR 3.1(2)(m) (encourage parties to use ADR and facilitate its use and hearing an “ENE respectively”

Question 3

What are court power (post-commencement of proceedings)

Answer 3

CPR 36- Make offers to settle

CPR 24-Provisions for summary disposal of issues to narrow a dispute

CPR 3.(1)(2)(f)- Stay claims for ADR

Question 4

What is purpose of PD and is compliance mandatory?

Answer 4

Purpose: explain conduct and steps the court would expect the parties to take before commencing proceeding in situations where no specific pre-action protocol applies

IF don’t have protocol; they shld still comply with relevant PD before commence proceedings

Compliance is not mandatory, they may however face sanctions by doing so

Question 5

IF dispute goes to litigation and party fails to comply with PD, when will court take into account non-compliance

Answer 5

Para 13 of PD: (2 points)
- When court give direction for management of proceedings

• When making orders for costs

Question 6

Para 16 sets out sanctions that court may impose where there is non-compliance. These actions are?

Answer 6

-Order that party at failt pays cost of the proceedings or part of the costs of the other party

-Order that party at fault pay those costs on indemnity basis

-Party at fault is a C who has been awarded a sum of money, an order depriving that party of interest on sum for a specified period and/or awarding interest at lower rate than would have been awarded ( deprive interest)

-Party at fault is D and C awarded sum of money, an order awarding interest on that sum for a specified period at a higher rate (not exceed 10% above base rate)

Dealt in CPR 44.2- Courts discretion in relation to costs

Question 7

IF C recieves from D denying liability, does the C need to do anything? (narrow)

Answer 7

• PAra 12 of PD (pg 2622), provide that dispute has not been resolved after following PD, the parties shld review posisiton to see if proceedings can be avoided.

IF proceedings cant be avoided, parties shld at least seek to narrow the issues that are in dispute before the C issues proceedings

Question 8

What Provision deal with instruction from expert by parties in PD

Answer 8

Para 7, deal with experts. Court “must” give permission before expert evidence can be relied upon.

PD reminds the parties that disputes can be resolved without expert evidence, esp low val claim, the parties shld consider using

( single expert, jointly instructed by) parties, with costs shared equally

This means that parties jointly identify and then instruct one expert, single joint expert. Idea to limit cost of expert evidence in low val claim.

Question 9

(PIP) IF the C not ready to send formal letter of claim but D don’t know existence of Claim what shld the C do?

Answer 9

The C shld consider giving an early warning to the D and/or the defendant’s insurer in such circumstances.

-“Letter of notification”- particularly useful when D has no or limited knowledge of the incident giving rise to the claim, or in circumstance where the C is incurring sig expenditure as a result of the accident (This gives the D advance warning of the need to inv or of the incurred of large treatment etc costs)

Question 10

Which Kind of PI does PIP not apply to? (rmbr its primarily designed for Fast track)

Answer 10

PIP designed for PI claims which likely to be allocated to fast track claim.

( Fast track claims where total val of damages does not exceed 25k

-Trial is for one day
-Expert evidence limited to one per party

PIP not for:
-Protocol for PI low val PI claim in road traffic accident
-PI low val (employer liability and public liability claims)
-Protocol for -Clinical disputes
Protocl for -Disease and Illnes claims
-Protocol of Low PI claim below small claim for road traffic accident

Generaly all follow Pre-Action protocol for PI claims, but if meet criteria of specific protocol then proceed under that instead of PIP

Question 11

What shld the letter of claim include in PIP

Answer 11

Suff info for the D to:
a) assess whether they liable
b( form broad view and likely size of heads of the claim ( letter don’t need to address the quantum (val of claim)

Letter shld also contain:
- Clear summary of facts on which claim is based
-Indication of the injuries suffered by C and prognosis
-Detail of financial lost incurred by the C

Question 12

What step shld the D take on receiving C letter?

Answer 12

Para 6 of PIP, D must respond
-The D must identify insurer within 21 DAYS OF THE DATE OF POSTING THE LETTER

-If D or insurer does not reply within 21 days period then the C “may” issue proceedings. Time period extend to 42 days where the accident occurred abroad

-If insurer is aware of sig omissions from LOC they shld identify them specifically

-If they are aware that another D has also been identified who they believe not correct D in proceedings, they shld notify the C “without delay” before end of response period.

The D insurer has 3 months from date of acknowledgement of LOC to investigate

If the D insurer deny liability and/or causation, they need to supply their version of events and documents they have in their possession which are material to the issues between both parties.

Question 13

What kind of expert evidence does the PIP provide and how does the process work?

Answer 13

Para 7.2 of the PIP- provides that save for cases likely to be allocated to the multi-track ( (for now it is enough that you broadly understand that these are cases where the value of the claim is in excess of £100,000, or to which the fast track or intermediate tracks are not the appropriate track for some other reason)

The PIP encourage joint selection and access to quantum experts and occasion liability experts.

The report produced is not a joint report (expert not instructed by both parties)

Instead party wishing to instruct an expert provides the other party with list of names of one or more experts in the area whom they consider are suitable to instruct, inv obj to one or more of those named)

Essentially,
-Party wishing to instruct provides the other with list of names of experts in speciality (Para 7.3)

-Within 14 days of being provided names, the other party may indicate an objection to one or more names in the list. The first party shld then instruct a mutually acceptable expert , if there is one

• If party object to all, the other party may then instruct an expert of their own choice. Court to decided subsequently and if proceedings, whether either party has acted unreasonable

If D don’t object to an expert nominated by the C they shall not be entitled to rely on their own evidence within that experts area of expertise UNLESS C AGREE, the court directs, or the C expert report has been amended and the C is not prep to disclose the ori report (para 7.8)

Its important to note that expert instructed this way is not a JOINTLY INSTRUCTED EXPERT. In this regard, the issue of expert evidence under the PIP differs to the position under the PD -Pre action conduct (here joint instruction of expert is encouraged under the PD, particularly in low val claims) para 7

PIP-joint selection (fast track and above)

PD-Pre-action protocol(small val claim)- Joint instructed

Question 14

Where is for PIP can the D be prevented from asking q of the expert

Answer 14

No. Though the D is treated having accepted the expert, they are still free to ask q. Any questions must be in writing and sent to the expert via the instrcting party’s solicitor (para 7.9)

The Q must be put within 28 days of service of the expert’s report (para 7.9)

The purpose of q IS TO GET CLARIFICATION OF THE REPORT ONLY (para 7.9)

Question 15

Who pays the expert if its PIP

Answer 15

rmbr PIP is joint selection.

The C is responsible for paying the expert first (para 7.10). If the C win in claim, the GR C able to recover reasonable costs of the expert on standard basis from the D (CPR 44.2(3)(a)

Q put to expert, the cost of the expert replying will be borne by party asking the Q (para 7.10)

Question 16

What happens where the D admits liability but not quantum (amount of dmgs which are payable)

Answer 16

Para 8.1.1: In such situations the C needs to do 2 things,

a) send the D any medical report which C relies on

b) serve a schedule of past and future exp and losses which are claimed)

This lets D put val on claim, The C shld hold off from issue proceedings for 21 DAYS, to allow the D to val the claim and make an offer (para 8.1.2 pg 2631)

Question 17

RMBR that Letters of claim and responses are not intended to have the same status as a statement of case. It would defeat the purpose of the protocol if parties subsequently penalized for clarifying matters when proceedings are issued.

Parties shld however be way of making substantial changes without exp why this is necessary

Answer 17

SO REMEMBER THAT LETTER OF CLAIM AND RESPONSE NOT SAME STATUS AS SOC, but it shld provide good reason for change, or else this would be unreasonable conduct.

Question 18

Rmbr that though following protocols are not mandatory, the parties would normally be expected to comply with steps set out in protocol before commence proceedings.

Answer 18

Before commence proceedings, court expect parties to have exchanged suff info to understand, each other position, make decision about how to proceed, try to settle without issuing proceedings, consider a form of ADr, support the efficient management of proceedings and reduce cost.

IF from facts no formal written comm between parties, there is non-compliance.

Refusal- may be considered unreasonable by court and lead to adverse cost conseq (sanctions).

IF no good reason for non-compliace, they need to comply with PD .

Question 19

Where if the C brings proceedings and wins and D brings up that C has non-compliance what will court do?

Answer 19

The court will order that C pays the cost to D on indemnity basis. Court can also order that C be deprived of interest or lower rate.

rmbr that “costs follow the event”-=
(The unsuccessful party will pay the costs of the successful party, the court have wide discretion when come to costs.

Rmbr court sanction cant deprive winning party whole or part of their damages.

Question 20

(This is v imp u get it)

So say if C injured and injuries below 25k, The D deny liability and parties have exchanged info between themselves what steps shld they take next?

Answer 20

So given that the injury is 25k and D has denied liability, the Pre-action Protocol of Personal injury apply, the parties then shld follow the steps under the protocol (give consideration to expert evidence, disclosure, and whether some form ADR must be able to resolve dispute) before issue proceedings.

Exp:
PAP for PI, applies to cases WITH A VAL OF UP TO 25K. Though the GR approach is that shld still be followed in claims of higher val. the thing is here that though there is protocol for PI of low val in road traffic accident, when the claim exits that protocol ( The D deny liability), it will cont to proceed under the PAP for PI.

As such though the C claim would have begun in PAP for low val traffic accident, when the D deny liability it exits the protocol but parties still need to follow Pre-Action protocol for PI claims before proceedings are commenced.

Make sure you understand this well.

Question 21

Once again revising that PAP for PI (experts)

Answer 21

know the distinction between joint selection of an expert and “joint instruction”

Joint Selection- where the C nominates an expert/number of exp an inv the D to voice any obj to one or more of the nominated experts

The C shld then instruct the mutually acceptable exp, instruction only come from the C, since he responsible paying.

Once available the C will disclose the report to D, D can ask q for purpose of clarifying the report.

Joint instruction (for low val case)- expert is instructed by both parties, and resposbible send instruc, cost shared between the two.

Question 22

Rmbr that there is no requirement to disclose a report obtained by way of joint selection to the D. But if its not disclosed then the C unlikely able to recover the cost of obtaining the report from the D, if C is successful.