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Civil Litigation > Unit 3 - Pre-Action Protocols and Practice Direction > Flashcards

Unit 3 - Pre-Action Protocols and Practice Direction Flashcards

1
Q

What are the objectives of the Pre-Action Conduct and Protocols? (6)

(tip: MACSUD)

A

Understand each other’s position;

Make decisions about how to proceed;

Try to settle issues without proceedings;

Consider of form of ADR to assist with settlement;

Support the efficient management of proceedings;

Reduce the costs of resolving the dispute;

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2
Q

Can the Pre-action Protocols be used as a tactical device to secure an advantage over another party?

A

No; paragraph 3 explicitly opposes this.

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3
Q

What should parties do when no relevant pre-action protocol applies?

A

The parties should exchange correspondence and information to comply with the objectives in paragraph 3, in a proportionate manner.

The necessary steps usually include:

(A) C writing to D with concise claim details, such as the basis of claim, facts, what is claimed and money calculatons.

(b) D responding in a reasonable time (14 days for simple, 3 months for complex cases), confirming or explaining why the claim is rejected. Details of any counterclaims and defences.
(c) Parties diclosing key documents which are relevant

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4
Q

Can parties share a single expert, jointly instructed by the parties?

A

Yes, this is actually advised.

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5
Q

Is litigation the first resort?

A

It is the last resort. ADR and negotiation should be considered in lieu of commencing proceedings.

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6
Q

Do parties have to consider reaching settlement after proceedings have been started?

A

Yes, see para 9.

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7
Q

Name 4 different kinds of ADR.

A

Mediation
Arbitration
Early neutral evaluation
Ombudsmen schemes

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8
Q

Must the court request evidence of ADR being considered in all cases?

A

No. The court MAY require it. There must be clear and obvious reasons why ADR was not attempted in such situations.

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9
Q

Is a party’s silence in response to an ADR invitation unreasonable?

A

Usually yes.

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10
Q

TRUE or FALSE. Non-compliance is to be considered both when a court gives management directions and when making orders for costs.

A

TRUE.

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11
Q

Do minor/technical infringements of pre-action protocols constitute breach?

A

No.

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12
Q

The court may decide that there has been a failure of compliance when a party has: (3)

(tip: ITR)

A

(a) not provided sufficient information to enable the objectives in paragraph 3 to be met;
(b) not acted within a time limit set out in a relevant protocol, or within a reasonable period;
(c) unreasonably refused to use a form of ADR or failed to respond to an invitation to do so.

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13
Q

What can a court do if it finds non-compliance?

tip: not just sanctions!
(tip: RESS)

A

(a) RELIEVE parties of obligations to comply further
(b) order a STAY of proceedngs until compliance is adhered to;
(c) apply SANCTIONS
(d) give defendant an EXTENSION of time where a claimant issues prematurely

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14
Q

What are the available sanctions which a court may order for non-compliance?

A

Order to pay costs of proceedings/other party’s/on indemnity basis

Deprive interest for a defaulting successful claimant;

Increase interest for successful claimant against a defaulting party

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15
Q

What should parties do if they commence proceedings prior to pre-action protocols, in order to beat a relevant statutory limitation period?

A

Apply to the court for a stay of proceedngs while they so comply.

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16
Q

What can a court do where a defendant fails to reply adequately in time to a letter of claim, but has a good defence, and as a result the claimant chooses to discontinue proceedings upon service of defence?

A

The court can order D to pay some or all of C’s costs.

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17
Q

Can the Personal Injury Protocol only be used for personal injury claims?

A

No, it can be used for matters that have a PI element alongside something else.

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18
Q

What is the usual track allocation for the personal injury protocol?

A

Fast track, but can be used for larger claims.

19
Q

If a party is acting as a litigant in person, does the PI Protocol still apply?

A

Yes.

20
Q

Does a letter of notification start the PI Protocol Timetable?

A

No, the letter of claim does.

21
Q

What information should be contained within a letter of claim for personal injury?

A

clear summary of the facts on which the claim is based

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.

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.

22
Q

Once a letter of claim has been sent, can the sender change their position in relation to their case?

A

Yes, so long as they were not trying to mislead the other party.

23
Q

What distinguishes a legitimate document request from a fishing expediton?

A

Only searching for relevant information that helps clarify or resolve the issues in the case.

24
Q

How long does a respondent have to respond to a letter of claim?

A

Within 21 calendar days of the date of posting.

25
Q

What should a party do before they instruct an expert in a PI case?

A

Give a list of potential experts to the other side.

26
Q

If a party fails to object to a nominated expert, can they use their own expert?

(tip: CCA)

A

Usually, no. This may potentially be allowed in limited circumstances:

(a) where the other party CONSENTS;
(b) the COURT so directs;
(c) the expert report has been AMENDED and the other party is not prepared to disclose the original report

27
Q

What are special damages within a PI case?

A

Specified losses with a definite figure.

28
Q

What are general damages within a PI case?

A

An indefinite figure that is generalised in some way.

29
Q

How much time is it suggested that defendants are provided in PI claims to investigate and respond to a claim, before proceedings are issued?

A

3 months.

30
Q

Why should a claimant send two copies of the Letter of Claim to the defendant in a PI pre-action protocol?

A

Because one copy is for passing on to the insurers.

31
Q

Do letters of claim and response have the same formal status as statements of case in proceedings?

A

No.

32
Q

Is a defendant under a duty to preserve disclosure documents and other evidence in a PI protocol?

A

Yes. Destruction could be an abuse of court process.

33
Q

How long does a party have to object to a nominated expert?

A

14 days

34
Q

Following an admission of liability from the defendant, must the claimant delay issuing proceedings following disclosure of expenses and medical reports?

A

Yes, for up to 21 days, to enable the parties to consider whether settlement is possible.

35
Q

CPR Part 36 covers what?

A

Offers to settle pre-proceedings.

36
Q

What should the parties do where the procedure in the PI protocol does not resolve their disputes?

(4)

(RANS)

A

Review strengths and weaknesses of own case;

Consider evidence and arguments together, to determine if litigation can be avoided;

Consider if issues can be narrowed;

Insurer should nominate solicitors.

37
Q

Can sanctions be imposed if a party’s pre-action response is insufficient?

A

Yes.

38
Q

When might non-compliance with protocols be justified?

3) (LUJ

A

If proceedings would otherwise fall foul of a limitation period.

If urgent action is required.

If there is a legitimate concern that the other side would commence proceedings in another jurisdiction in breach of a jurisdiction clause.

(Nevertheless, compliance should still be attempted insofar as it is possible to do so. You should explain your reasons for non-compliance.)

39
Q

If one party does not comply, does this make the other party’s non-compliance acceptable.

A

No, non-compliance should not be mirrored. It should be reported.

40
Q

TRUE or FALSE. Lawyers have no positive duties to try and settle cases pre-action.

A

FALSE.

41
Q

The rules with regard to pre-action conduct can be found in the following: (2)

A

Pre-action Protocols

Practice Direction on pre-action conduct and protocols

42
Q

Is the Practice Direction on Pre-action Conduct mandatory?

A

No. It specifies what should be done if reasonable, not what MUST be done.

43
Q

True or false. The legal costs incurred pre-action only become recoverable once proceedings are commenced.

A

TRUE. Therefore, think carefully before incurring substantial legal expenses pre-action.

Civil Litigation (19 decks)

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