unit 3 - Pre-action conduct

Question 1

Objectives of Pre-Action Conduct and Protocols

Answer 1

Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—
(a)understand each other’s position;
(b)make decisions about how to proceed;
(c)try to settle the issues without proceedings;
(d)consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e)support the efficient management of those proceedings; and
(f)reduce the costs of resolving the dispute.

Question 2

Proportionality

Answer 2

A pre-action protocol or this Practice Direction must not be used by a party as a tactical device to secure an unfair advantage over another party. Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues.

Question 3

The costs incurred in complying with a pre-action protocol or this Practice Direction should be proportionate

Answer 3

Where parties incur disproportionate costs in complying with any pre-action protocol or this Practice Direction, those costs will not be recoverable as part of the costs of the proceedings.

Question 4

Steps Before Issuing a Claim at Court

if relevant pre-action protocol =

Answer 4

the parties should comply with that protocol before commencing proceedings.

Question 5

Steps Before Issuing a Claim at Court

Where there is no relevant pre-action protocol =

Answer 5

the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate.

Question 6

Steps Before Issuing a Claim at Court

Where there is no relevant pre-action protocol =
The steps will usually include—

Answer 6

(a)the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;

(b)the defendant responding within a reasonable time—14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and

(c)the parties disclosing key documents relevant to the issues in dispute.

Question 7

Experts - is the court’s permission needed?

Answer 7

yes

Parties should be aware that the court must give permission before expert evidence can be relied upon
E

Question 8

Experts - fees?

Answer 8

The court may limit the fees recoverable.

Many disputes can be resolved without expert advice or evidence. If it is necessary to obtain expert evidence, particularly in low value claims, the parties should consider using a single expert, jointly instructed by the parties, with the costs shared equally

Question 9

List of issues - when to narrow this?

Answer 9

Where a dispute has not been resolved after the parties have followed a pre-action protocol or this Practice Direction, they should review their respective positions.

They should consider the papers and the evidence to see if proceedings can be avoided and at least seek to narrow the issues in dispute before the claimant issues proceedings.

Question 10

Limitation - is this impacted by the pre-action protocols?

Answer 10

no.
This Practice Direction and the pre-action protocols do not alter the statutory time limits for starting court proceedings.

If a claim is issued after the relevant limitation period has expired, the defendant will be entitled to use that as a defence to the claim.

If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Practice Direction or the relevant pre-action protocol, the parties should apply to the court for a stay of the proceedings while they so comply.

Question 11

Points to note on the application of the protocols

Answer 11

• The protocols are codes of best practice, to be followed generally but not slavishly.
• The court confirmed that it will look for substantive compliance and will keep in mind the need for proportionality, saving costs, and efficient progress of the litigation when assessing compliance with the practice direction
• The period for the defendant to investigate and respond (which varies between the protocols from 14 days—Media and Communications, Construction and Judicial Review to four months—Clinical Negligence) can be varied by the parties by consent.
• In simple cases where the defendant is already aware of and has taken some action, the full protocol period might not be necessary.
  o But, in more complex cases or where the origin of the dispute occurred some time previously, or where the defendant had no prior knowledge of the potential claim, a longer period might be justified.
  o Reasonableness is the watchword. The court is much more interested in compliance with the spirit of a protocol than the exact letter.

Question 12

letter of detail - pre-action protocols

Answer 12

will depend on the type and value of the case but should always include the main facts and circumstances, the nature of the dispute or claim (breach of contract, allegations of negligence etc.) and the remedy sought.

o In the spirit of openness the claimant might want to enclose with the letter key documents and when money is being claimed the claimant should also provide as much information as possible on the value of the claim, at least sufficient to enable the defendant to form a view of the likely “bracket” of the damages.

Question 13

If the claimant does not write to the defendant until towards the end of a relevant limitation period…

Answer 13

the claimant should issue proceedings if necessary to protect the client’s position and should then either delay serving the claim form while the protocol is followed (the CPR provide four months for service (r.7.5), or should serve the claim and invite the court to order a stay under r.26.4.

Question 14

The defendant’s response letter should be detailed and not simply deny the claim. The frequent pre-CPR approach of ignoring an initial letter or replying very briefly is not within the spirit of the CPR and could be a breach of a protocol meriting a sanction.

Answer 14

o Also if a defendant is prepared to admit liability, the letter should say so clearly: the previous practice of not positively admitting liability but encouraging negotiations to lead to a settlement, is also not within the spirit of the reforms.

o This is because it leaves the claimant in a dilemma as to whether it is necessary to assemble the evidence to establish liability: doing so can substantially increase costs. CPR r.14.1 gives the court the power to allow a party to withdraw an admission but the burden rests upon the party applying. If liability is denied, the defendant must give proper reasons and should enclose with the letter any relevant documents on which they rely, if these have not previously been disclosed.

Question 15

ADR - protocols

Answer 15

• Most of the protocols do not require the parties to take specific steps to try to settle the claim pre-issue, either by making an offer to settle (under Pt 36) or by meeting/negotiating.
  o But they all strongly encourage early settlement discussions and use of an ADR approach. The courts are not sympathetic to parties who are unwilling at least to try to narrow the issues or to hold settlement discussions pre-issue.
  o It should be noted also that pre-action Part 36 offers to settle may have the same costs consequences as post-commencement offers, provided the offeror has provided the offeree with sufficient information to enable her to understand and evaluate the offer.

Question 16

Protocols - small claim, do they apply?

Answer 16

The protocols do not specify whether they apply to small claims.
o The common sense approach is that, provided a letter of claim is sent, proportionality should preclude the need in most instances to follow all the steps in a protocol.
o But the courts will make costs awards in small claims cases for “unreasonable conduct”.

Question 17

Pre-action applications - pre-action disclosure under r.31.16

Answer 17

While parties can apply for pre-action disclosure under r.31.16, generally they cannot apply to the court pre-issue for rulings on other matters
o But in previous case law = the court was prepared to hear an application from an insurer for a declaration of non-liability in a situation where the action was only likely to proceed where the defendant was insured.

Question 18

Pre-Action Protocol for Personal Injury Claims

Answer 18

This Protocol is primarily designed for personal injury claims which are likely to be allocated to the fast track and to the entirety of those claims: not only to the personal injury element of a claim which also includes, for instance, property damage.

Question 19

Where either party fails to comply with this Protocol, the court may impose sanctions.

Answer 19

When deciding whether to do so, the court will look at whether the parties have complied in substance with the relevant principles and requirements. It will also consider the effect any non-compliance has had on another party. It is not likely to be concerned with minor or technical shortcomings

Question 20

D given time to respond to claim

Answer 20

The Protocol recommends that a defendant be given three months to investigate and respond to a claim before proceedings are issued. This may not always be possible, particularly where a claimant only consults a legal representative close to the end of any relevant limitation period. In these circumstances, the claimant’s solicitor should give as much notice of the intention to issue proceedings as is practicable and the parties should consider whether the court might be invited to extend time for service of the claimant’s supporting documents and for service of any defence, or alternatively, to stay the proceedings while the recommended steps in the Protocol are followed.

Question 21

Litigants in Person - protocol

Answer 21

even if the party is a LIP they should as reasonably possible, fully comply with this Protocol.

Question 22

Overview of Protocol—General Aim

Answer 22

(a)encourage the exchange of early and full information about the dispute;
(b)encourage better and earlier pre-action investigation by all parties;
(c)enable the parties to avoid litigation by agreeing a settlement of the dispute before proceedings are commenced;
(d)support the just, proportionate and efficient management of proceedings where litigation cannot be avoided; and
(e)promote the provision of medical or rehabilitation treatment (not just in high value cases) to address the needs of the Claimant at the earliest possible opportunity.

Question 23

Pre-Action Protocol for Personal Injury Claims
Letter of Notification

Answer 23

The claimant or his legal representative may wish to notify a defendant and/or the insurer as soon as they know a claim is likely to be made, but before they are able to send a detailed Letter of Claim, particularly, for instance, when the defendant has no or limited knowledge of the incident giving rise to the claim, or where the claimant is incurring significant expenditure as a result of the accident which he hopes the defendant might pay for, in whole or in part.

The Letter of Notification should advise the defendant and/or the insurer of any relevant information that is available to assist with determining issues of liability/suitability of the claim for an interim payment and/or early rehabilitation.

If the claimant or his legal representative gives notification before sending a Letter of Claim, it will not start the timetable for the Letter of Response. However the Letter of Notification should be acknowledged within 14 days of receipt.

Question 24

Pre-Action Protocol for Personal Injury Claims
Letter of Claim - when should it be sent

Answer 24

the claimant should send to the proposed defendant two copies of the Letter of Claim. One copy of the letter is for the defendant, the second for passing on to the insurers, as soon as possible, and, in any event, within 7 days of the day upon which the defendant received it.

Question 25

Pre-Action Protocol for Personal Injury Claims

The Letter of Claim should include :

Answer 25

contain a clear summary of the facts on which the claim is based together with an indication of the nature of any injuries suffered, and the way in which these impact on the claimant’s day to day functioning and prognosis.

Any financial loss incurred by the claimant should be outlined with an indication of the heads of damage to be claimed and the amount of that loss, unless this is impracticable.

Details of the claimant’s National Insurance number and date of birth should be supplied to the defendant’s insurer once the defendant has responded to the Letter of Claim and confirmed the identity of the insurer. This information should not be supplied in the Letter of Claim.

Question 26

Where a claim no longer continues under either low value protocol, the CNF completed by the claimant under those protocols…

Answer 26

can be used as the Letter of Claim under this Protocol unless the defendant has notified the claimant that there is inadequate information in the CNF.

Question 27

Where a claim no longer continues under the RTA Small Claims Protocol, the Small Claim Notification Form or SCNF completed by the claimant …

Answer 27

can be used as the Letter of Claim under this Protocol.

Question 28

Pre-Action Protocol for Personal Injury Claims
D’s reply to letter of claim

Answer 28

The defendant must reply within 21 calendar days of the date of posting of the letter identifying the insurer (if any).

If the insurer is aware of any significant omissions from the letter of claim they should identify them specifically. Similarly, if they are aware that another defendant has also been identified whom they believe would not be a correct defendant in any proceedings, they should notify the claimant without delay, with reasons, and in any event by the end of the Response period. Where there has been no reply by the defendant or insurer within 21 days, the claimant will be entitled to issue proceedings. Compliance with this paragraph will be taken into account on the question of any assessment of the defendant’s costs.

Question 29

Where the accident occurred outside England and Wales and/or where the defendant is outside the jurisdiction = time period extended

Answer 29

the time periods of 21 days and three months should normally be extended up to 42 days and six months.

Question 30

Personal injury protocol

If a defendant denies liability and/or causation, their version of events should be supplied.

Answer 30

The defendant should also enclose with the response, documents in their possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings. No charge will be made for providing copy documents under the Protocol.

Question 31

The aim of early disclosure of documents by the defendant =

Answer 31

to promote an early exchange of relevant information to help in clarifying or resolving issues in dispute

Question 32

Pre-action disclosure will generally be limited to the documents required to be enclosed with the Letter of Claim and the Response.

Answer 32

In cases where liability is admitted in full, disclosure will be limited to the documents relevant to quantum, the parties can agree that further disclosure may be given. If either or both of the parties consider that further disclosure should be given but there is disagreement about some aspect of that process, they may be able to make an application to the court for pre-action disclosure under Part 31 of the CPR. Parties should assist each other and avoid the necessity for such an application.

Question 33

D’s duty to preserve disclosure document

Answer 33

The protocol should also contain a requirement that the defendant is under a duty to preserve the disclosure documents and other evidence (CCTV for example)

If the documents are destroyed, this could be an abuse of the court process.

Question 34

experts - joint selection

Answer 34

Save for cases likely to be allocated to the multi-track, the Protocol encourages joint selection of, and access to, quantum experts, and, on occasion liability experts e.g. engineers. The expert report produced is not a joint report for the purposes of CPR Part 35. The Protocol promotes the practice of the claimant obtaining a medical report, disclosing it to the defendant who then asks questions and/or agrees it and does not obtain their own report. The Protocol provides for nomination of the expert by the claimant in personal injury claims

Question 35

Before any party instructs an expert, they should give the other party a list of the name(s) of one or more experts in the relevant speciality whom they consider are suitable to instruct.

Question 36

Some solicitors choose to obtain medical reports through medical agencies, rather than directly from a specific doctor or hospital.

if this is done =

Answer 36

The defendant’s prior consent to this should be sought and, if the defendant so requests, the agency should be asked to provide in advance the names of the doctor(s) whom they are considering instructing.

Question 37

party indicating objection to named experts

Answer 37

Within 14 days of providing a list of experts the other party may indicate an objection to one or more of the named experts.

The first party should then instruct a mutually acceptable expert assuming there is one (this is not the same as a joint expert). It must be emphasised that when the claimant nominates an expert in the original Letter of Claim, the defendant has a further 14 days to object to one or more of the named experts after expiration of the 21 day period within which they have to reply to the Letter of Claim

If the defendant objects to all the listed experts, the parties may then instruct experts of their own choice. It will be for the court to decide, subsequently and if proceedings are issued, whether either party had acted unreasonably.

Question 38

If the defendant does not object to an expert nominated by the claimant, they shall not be entitled to rely on their own expert evidence within that expert’s area of expertise unless

Answer 38

(a)the claimant agrees;
(b)the court so directs; or
(c)the claimant’s expert report has been amended and the claimant is not prepared to disclose the original report.

Question 39

Any party may send to an agreed expert written questions on the report, via the first party’s solicitors. - when must they do this by?

Answer 39

Such questions must be put within 28 days of service of the expert’s report and must only be for the purpose of clarification of the report.

The expert should send answers to the questions simultaneously to each party.

Question 40

agreed expert - who pays?

Answer 40

The cost of a report from an agreed expert will usually be paid by the instructing first party: the costs of the expert replying to questions will usually be borne by the party which asks the questions.

Question 41

In respect of a claim for a whiplash injury, the claimant must follow one of the procedures :

Answer 41

(a)The claimant must obtain a fixed cost medical report from an accredited medical expert who is instructed via a search of the online database of medical reporting organisations and medical experts held by MedCo
(b)in instructing an expert to provide a fixed cost medical report in a claim for whiplash injury, it is expected that in most cases the medical expert will not need to see any medical records;
(c)where the claimant lives outside England and Wales, but chooses to be examined for the purposes of a medical report in England and Wales, paragraphs (a) and (b) apply.

Question 42

Where the claimant obtains a medical report in respect of a more serious injury suffered at the same time as the whiplash injury, the claimant may use that report instead of a report under paragraph 7.12.4 above provided that—

Answer 42

(a)the report is from a doctor who is listed on the General Medical Council’s Specialist Register; and
(b)the report provides evidence of the whiplash injury.

Question 43

Unless paragraph 7.12.4(c) applies, where the claimant lives outside England and Wales, the medical report in respect of the claim for the whiplash injury (or, if there is more than one report, the first report) must be from a person who is recognised by the country in which they practise as—

Answer 43

(a)being a medical expert; and
(b)having the required qualifications for the purposes of diagnosis and prognosis of a whiplash injury.

Question 44

Where a defendant admits liability which has caused some damage, before proceedings are issued, the claimant should send to that defendant—

Answer 44

(a)any medical reports obtained under this Protocol on which the claimant relies; and

(b)a schedule of any past and future expenses and losses which are claimed, even if the schedule is necessarily provisional. The schedule should contain as much detail as reasonably practicable and should identify those losses that are ongoing. If the schedule is likely to be updated before the case is concluded, it should say so.

Question 45

The following definitions apply in paragraph 7.12 and in paragraphs 8.2 and 8.3—

Answer 45

(a)“associate” means, in respect of a medical expert, a colleague, partner, director, employer or employee in the same practice and “associated with” has the equivalent meaning;
(b)“accredited medical expert” means a medical expert who is accredited by MedCo to provide medical reports in whiplash injury claims;
(c)“fixed cost medical report” means a report in a whiplash injury claim which is from a medical expert who, save in exceptional circumstances—
(i)has not provided treatment to the claimant;
(ii)is not associated with any person who has provided treatment; and
(iii)does not propose or recommend treatment that they or an associate then provide;
(d)“MedCo” means MedCo Registration Solutions; and
(e)“whiplash injury” means an injury or injuries of soft tissue in the neck, back or shoulder suffered because of driver negligence as defined in section 1 of the Civil Liability Act 2018 and as further applied by section 3 of that Act to claims arising from a road traffic accident on or after 31 May 2021 and where the duration of the whiplash injury or any of the whiplash injuries—
(i)does not exceed, or is not likely to exceed, two years; or
(ii)would not have exceeded, or would not be likely to exceed, two years but for the claimant’s failure to take reasonable steps to mitigate its effect.

Question 46

Negotiations following an admission
Where a defendant admits liability which has caused some damage, before proceedings are issued, the claimant should send to that defendant—

Answer 46

(a)any medical reports obtained under this Protocol on which the claimant relies; and
(b)a schedule of any past and future expenses and losses which are claimed, even if the schedule is necessarily provisional. The schedule should contain as much detail as reasonably practicable and should identify those losses that are ongoing. If the schedule is likely to be updated before the case is concluded, it should say so.

Question 47

CPR Part 36 permits claimants and defendants to make offers to settle pre-proceedings.

Answer 47

Parties should always consider if it is appropriate to make a Part 36 Offer before issuing. If such an offer is made, the party making the offer must always try to supply sufficient evidence and/or information to enable the offer to be properly considered.

Question 48

In a claim that consists of or includes a claim for whiplash injury, the Whiplash Injury Regulations 2021 provide that—

Answer 48

(a)no offer may be made, invited or accepted by either party; and
(b)no payment may be made by the defendant or accepted by the claimant,
in respect of the claim for whiplash injury until after the fixed cost medical report has been disclosed.

Question 49

Whiplash injury - value

Answer 49

Any claim for whiplash injury and, if relevant, minor psychological injuries suffered on the same occasion as the whiplash injury, will be valued by reference to the tariffs set out in the Whiplash Injury Regulations 2021.

Question 50

Alternative Dispute Resolution - protocol

Answer 50

Litigation should be a last resort. As part of this Protocol, the parties should consider whether negotiation or some other form of Alternative Dispute Resolution (“ADR”) might enable them to resolve their dispute without commencing proceedings.

Question 51

Some of the options for resolving disputes without commencing proceedings are—

Answer 51

(a)discussions and negotiation (which may or may not include making Part 36 Offers or providing an explanation and/or apology);
(b)mediation, a third party facilitating a resolution;
(c)arbitration, a third party deciding the dispute; and
(d)early neutral evaluation, a third party giving an informed opinion on the dispute.

Question 52

If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. - can parties be forced?

Answer 52

no!
no party can or should be forced to mediate or enter into any form of ADR but unreasonable refusal to consider ADR will be taken into account by the court when deciding who bears the costs of the proceedings.

Question 53

Quantification of Loss—Special damages

a schedule of any past and future expenses and losses

Answer 53

if the defendant admits liability, the claimant will send to the defendant as soon as reasonably practicable a schedule of any past and future expenses and losses which he claims, even if the schedule is necessarily provisional.

Question 54

Stocktake

Answer 54

Where the procedure set out in this Protocol has not resolved the dispute between the parties, each party should undertake a review of its own positions and the strengths and weaknesses of its case. The parties should then together consider the evidence and the arguments in order to see whether litigation can be avoided or, if that is not possible, for the issues between the parties to be narrowed before proceedings are issued. Where the defendant is insured and the pre-action steps have been taken by the insurer, the insurer would normally be expected to nominate solicitors to act in the proceedings and to accept service of the claim form and other documents on behalf of the defendant. The claimant or their solicitor is recommended to invite the insurer to nominate the insurer to nominate solicitors to act in the proceedings and do so 7 to 14 days before the intended issue date

Question 55

Other points of difficulty
Disclosure of an expert’s report
- timing

Answer 55

The protocol does not state what should happen if the claimant obtains a report which the claimant does not wish to disclose because it is unsatisfactory or unhelpful

Question 56

Responding to a proposal to use ADR
Most significant risk of an insufficient response =

Answer 56

if proceedings are issued, a sanction may be imposed or an adverse order as to costs made

Question 57

Some circumstances in which non-compliance with pre-action requirements may be justified:

Answer 57

o If the relevant limitation period is about to expire, it may be necessary to issue proceedings to ensure that they are issued in time
 Pre-action requirements should be satisfied so far as is reasonably possible in the time available
* If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in Practice Direction or a relevant pre-action protocol, the parties should apply to the court for a stay of the proceedings while they comply
 A need to take action urgently may justify a failure to comply with pre-action requirements where, for example, telling another potential party in advance would defeat the purpose of an application, as would be likely to be the case in an application for freezing injunction
* However even in such cases = parties should comply with pre-action process to the extent it is reasonable to do so.

Question 58

Non-compliance by another party = not an excuse for failing to comply with pre-action requirements

Answer 58

Appropriate course of action = raise non-compliance specifically and keep evidence of it so it can be addressed, rather than lured into mirroring non-compliance

Question 59

Failure to comply with pre-action protocols

Answer 59

• The court can take into account the extend of the parties’ compliance with the PAP when making case management + costs orders
• Non-compliance = can be unreasonable refusal to use a form of ADR/failing to respond at all to an invitation to do so
• The court can ask parties to provide evidence that ADR has been cosnidred

Question 60

Parties’ silence in response to invitation to participate in ADR =

Answer 60

might be considered unreasonable by the court + could lead to the court ordering the party to pay additional court costs

Question 61

The sanctions that a court can impose for non-compliance with the protocols include =

Answer 61

o Staying the proceedings
o Ordering that the party at fault pays the costs, or part of the costs of one or more of the parties
o An order that the party at fault pays those costs on indemnity basis
o If the party at fault is the C who has been awarded a sum of money, an order depriving that party of interest on that sum for a specified period and/or awarding interest at a lower rate than would otherwise been awarded
o If the party at fault is the defendant, and the C has been awarded a sum of money, an order awaiting interest on that sum for a specified period at a higher rate (not exceeding 10 per cent above the base rate) than the rate which would otherwise been awarded

Question 62

Adverse costs have been made in a number of cases for failing to follow reasonable pre-action conduct =

Answer 62

o However, court refused to strike-out case for non-compliance to this
o Case law = was held that the court expected parties to comply with PAP + failure to comply could amount to contempt of court or an abuse of process
o If the court found that the C’s conduct was an abuse of process = the court should conduct a balancing exercise to determine whether it was appropriate to strike out the claim
o Non-compliance may result in an indemnity costs order