Topic 2- Pre-Action Conduct Flashcards
What does the Practice Direction Pre-Action Conduct set out?
Explains the conduct needed and sets out the steps the court must take before commencing proceedings
What happens if there is no specific pre-action conduct?
The parties must use the practice direction pre-action conduct
Objective of Pre-Action Conduct and Protocols
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
Can a pre-action protocol be used as a tactical device by parties?
No, as this gives an unfair advantage over another party
THE PARTIES MUST BE ON EQUAL FOOTING- OO
Steps before Issuing a Claim in Court
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
How long must the defendant take to reply to the claimant’s initial letter?
A reasonable time frame
14 days- straightforward case
No more than 3 months- complex case
What should the parties consider when obtaining expert evidence?
They should consider using a single expert, jointly instructed, with the costs shared equally
ADR under the PD PAC
States that litigation should be a last resort, and should always consider ADR first to help them settle
What factors will the court consider if a party has not complied with the PD and Protocols?
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
What will the court do if a party has not complied with the PD PAC?
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
What sanctions can the court apply due to non-compliance of PD PAC?
- 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
What should the parties do if the parties haven’t followed the PD PAC, and the limitation period is nearly expired?
The parties should apply for a stay of proceedings to allow more time
Which track does the Pre-Action Protocol for Personal Injury Claims apply?
Fast track claims
- Will not apply to low value claims
What Pre-Action Protocol should personal injury claims worth £5,000-£25,000 use?
Pre-Acion Protocol for Personal Injury Claims (PIP)
How long will the defendant be given to investigate and respond to a claim under PIP?
3 months to investigate and respond
Objectives of PIP
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
How will the claimant notify the defendant in a PIP about the claim?
They will send a letter of notification notifying them of the claim
The D will need to acknowledge within 14 days
Letter of Notification (PIP)
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
What comes after the Letter of Notification in PIP?
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
How long does the Defendant have to reply to a Letter of Claim (PIP)?
They must send a Letter of Response within 21 days
They must identify the insurer here
What comes after a Letter of Claim in PIP?
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
What happens if there is no Letter of Response within 21 days (PIP)?
The claimant can issue proceedings
How long does the insurer have to investigate after a Letter of Claim is issued?
3 months
How are experts chosen in PIP claims?
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)
What does the claimant need to send to the defendant where liability is admitted in PIP claims?
Any medical reports obtained
A schedule of past and future expenses and losses
Can CPR Part 36 be used in PIP claims?
Yes, this will help the parties settle pre-proceedings
How does joint selection differ to joint instruction of experts?
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
Stocktakes in PIP
If the disputes are still unresolved, the parties should undertake a review of their positions (a stocktake)
If a claimant has not complied with PIP, what may the court do?
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
If a defendant has not complied with PIP, what may the court do?
Order that the defendant pay the costs of the proceedings on an indemnity basis
Award the claimant higher rate of interest
How does selection of an expert work in PIP?
The PIP encourages joint selection of an expert, however, they do not produce a joint expert report
If a defendant does not object to an expert nominated by the claimant, can they rely on their own expert evidence?
No
They must first get permission from the claimant or the court
What is the procedure for obtaining an expert in a PIP?
Joint selection of an expert
What happens if a the defendant objects to all the listed experts?
The parties may then instruct experts of their own choice
Which party may send the expert questions on their report in a PIP?
Both parties may send written questions on the report, within 28 days
How long does the defendant have to investigate a claim after date of acknowledgement?
3 months to investigate
What will the defendant do after they send their acknowledgement of claim in a PIP?
They will have 3 months to investigate the claim
Who will the costs of an expert report in a PIP claim be borne by?
The instructing first party (the claimant)
After a jointly selected expert has been obtained, can the parties obtain further expert reports?
Yes, only with the permission of the court
Is a poor relationship between the parties a reasonable excuse for refusal to engage in PDPAC?
No, there must be a better reason
In PIP claims, is there a joint instruction or joint selection of an expert?
Joint selection
Both parties will agree on selecting an expert
However, only the claimant will instruct the expert
Do both the parties instruct the expert in a PIP claim?
No, only the claimant instructs the expert
However, the defendant can ask the expert questions
Is the jointly selected expert report in a PIP claim privileged?
Yes, it is privileged, and so the claimant does not have to disclose it
However, they will likely have to bear the costs of the report if they do not disclose it
What orders may the court make if a defendant has unreasonably refused to engage in ADR?
Depriving defendant of interest on damages
Directing that the defendant must engage in ADR
Order depriving the defendant of its costs
