Topic 2- Pre-Action Conduct

Question 1

What does the Practice Direction Pre-Action Conduct set out?

Answer 1

Explains the conduct needed and sets out the steps the court must take before commencing proceedings

Question 2

What happens if there is no specific pre-action conduct?

Answer 2

The parties must use the practice direction pre-action conduct

Question 3

Objective of Pre-Action Conduct and Protocols

Answer 3

Before commencing proceedings, the court expect the parties to have exchanged sufficient information to understand each other’s position and make decision on how to proceed

Also must have considered a form of ADR and tried to settle the issues

Question 4

Can a pre-action protocol be used as a tactical device by parties?

Answer 4

No, as this gives an unfair advantage over another party

THE PARTIES MUST BE ON EQUAL FOOTING- OO

Question 5

Steps before Issuing a Claim in Court

Answer 5

The parties must follow the pre-action conduct
The steps are-
> The claimant writes to the defendant with concise details of the claim (eg, issues, remedies they want)
> The defendant must respond within a REASONABLE TIME FRAME (14 days to 3 months)
> The parties must then disclose all relevant key documents

Question 6

How long must the defendant take to reply to the claimant’s initial letter?

Answer 6

A reasonable time frame

14 days- straightforward case

No more than 3 months- complex case

Question 7

What should the parties consider when obtaining expert evidence?

Answer 7

They should consider using a single expert, jointly instructed, with the costs shared equally

Question 8

ADR under the PD PAC

Answer 8

States that litigation should be a last resort, and should always consider ADR first to help them settle

Question 9

What factors will the court consider if a party has not complied with the PD and Protocols?

Answer 9

Whether a party-
> Has not provided sufficient information to enable PD PAC

> Has not acted within a reasonable period

> Has UNREASONABLY refused to use ADR

Question 10

What will the court do if a party has not complied with the PD PAC?

Answer 10

The court may order that-

> The parties are relieved of the obligation to comply with PD PAC

> A stay of proceedings to ensure compliance of PD PAC

> Sanctions should be applied

Question 11

What sanctions can the court apply due to non-compliance of PD PAC?

Answer 11

• Order the party at fault to pay the cost/part of the cost of proceedings
• Order that the party at fault pays the costs on an indemnity basis
• Order that the party at fault is deprived of interest on the awards

Question 12

What should the parties do if the parties haven’t followed the PD PAC, and the limitation period is nearly expired?

Answer 12

The parties should apply for a stay of proceedings to allow more time

Question 13

Which track does the Pre-Action Protocol for Personal Injury Claims apply?

Answer 13

Fast track claims

• Will not apply to low value claims

Question 14

What Pre-Action Protocol should personal injury claims worth £5,000-£25,000 use?

Answer 14

Pre-Acion Protocol for Personal Injury Claims (PIP)

Question 15

How long will the defendant be given to investigate and respond to a claim under PIP?

Answer 15

3 months to investigate and respond

Question 16

Objectives of PIP

Answer 16

To encourage the exchange of early and full information about the dispute

To encourage better and early pre-action investigation

To avoid litigation

To support the overriding objective

To promote medical or rehab treatment

Question 17

How will the claimant notify the defendant in a PIP about the claim?

Answer 17

They will send a letter of notification notifying them of the claim

The D will need to acknowledge within 14 days

Question 18

Letter of Notification (PIP)

Answer 18

This will notify a defendant to state that a claim is likely to be made

The D will need to acknowledge within 14 days

This comes before the detailed Letter of Claim

Question 19

What comes after the Letter of Notification in PIP?

Answer 19

The claimant should then send the Letter of Claim to the defendant and insurers

It should include all the information and detail on it- facts, prognosis, etc

Question 20

How long does the Defendant have to reply to a Letter of Claim (PIP)?

Answer 20

They must send a Letter of Response within 21 days

They must identify the insurer here

Question 21

What comes after a Letter of Claim in PIP?

Answer 21

A Letter of Response by the defendant to the claimant

They must send a Letter of Response within 21 days (42 days outside of England and Wales)

They must identify the insurer here

Question 22

What happens if there is no Letter of Response within 21 days (PIP)?

Answer 22

The claimant can issue proceedings

Question 23

How long does the insurer have to investigate after a Letter of Claim is issued?

Answer 23

3 months

Question 24

How are experts chosen in PIP claims?

Answer 24

The claimant will provide a list of names, which the defendant will agree to one (unless they object)

They will then have a mutually agreed expert (joint selection)

Question 25

What does the claimant need to send to the defendant where liability is admitted in PIP claims?

Answer 25

Any medical reports obtained

A schedule of past and future expenses and losses

Question 26

Can CPR Part 36 be used in PIP claims?

Answer 26

Yes, this will help the parties settle pre-proceedings

Question 27

How does joint selection differ to joint instruction of experts?

Answer 27

Joint selection- where the claimant nominates an expert and invites the defendant to agree/disagree- they then have a mutually agreed expert, however only the CL instructs them- PIP claims

Joint instruction- where the expert is instructed by both parties and share expert fees

Question 28

Stocktakes in PIP

Answer 28

If the disputes are still unresolved, the parties should undertake a review of their positions (a stocktake)

Question 29

If a claimant has not complied with PIP, what may the court do?

Answer 29

Order that the claimant pays the costs of proceedings, or part of the costs on an indemnity basis

May also make an order depriving interest on their award, or interest at a lower rate

Question 30

If a defendant has not complied with PIP, what may the court do?

Answer 30

Order that the defendant pay the costs of the proceedings on an indemnity basis

Award the claimant higher rate of interest

Question 31

How does selection of an expert work in PIP?

Answer 31

The PIP encourages joint selection of an expert, however, they do not produce a joint expert report

Question 32

If a defendant does not object to an expert nominated by the claimant, can they rely on their own expert evidence?

Answer 32

No

They must first get permission from the claimant or the court