Workshop 1: Pre-action and Starting a claim Flashcards
**Topic: Pre-action considerations and conduct** - Pre-action conduct **Topic: Commencing and serving proceedings** - Where and how to issue the claim - Service of the claim form and other documents - Deemed dates of service **Topic: Statements of case** - General rules in relation to statements of case - Claim form - Particulars of claim
What are the consequences of proceedings not being commenced within the relevant limitation period?
- The claimant will be barred from recovering damages
- Therefore defendant will have full defence
When must a party making a claim including a claim for personal injuries bring a claim within?
When are the points of reference this claim must be brought within?
3 years of the latest of either
a) the date when the cause of action accrued
b) the date of knowledge of the person injured
What does s.14 of the Fatal Accidents Act 1976 define the ‘date of knowledge’ to be in reference to bringing a personal injury claim?
The date which a claimant knew that
a) the injury was significant
b) that it was attributable (at least in part) to the alleged wrongdoing
c) the identity of the defendant
d) if it is alleged that the wrongdoing was by someone other than the defendant, then that person’s identity and additional facts supporting bringing the claim against the defendant
What will the court consider in extending the limitation period of bringing a personal injury claim or claim under the Fatal Accidents Act?
- Conduct of the parties
- Reasons for the delay
- Effect of such a late claim on the evidence
What are the conditions for the court choosing to extend time in relation to personal injury claim or claim under the Fatal Accidents Act?
If it would be
- equitable
- balancing the prejudice to the claimant caused by the limitation period with prejudice to the defendant which allowing the claim would cause
When does the date whereby the limitation period for ‘contribution’ start running from?
Two years from the date on which the right to recover the contribution arose
When does the limitation period for negligence claims and claims where relevant facts relevant to the negligent cause of action are unknown at the date of accrual begin from?
Either
- Six years from when the cause of action accrued or
- Three years from when he had the requisite
a) knowledge
b) right to bring a claim
Does the claimant in a negligence claims and claims where relevant facts relevant to the negligent cause of action are unknown at the date of accrual need to know that they have a claim in negligence for the limitation period to start running?
No
What can ‘date of knowledge’ include in addition to claimant knowing ‘the material facts about the damage in respect of which damages are claimed’?
Knowledge which the claimant might reasonably have been expected to acquire from an expert
What is ‘date of knowledge’ defined as in negligence claims where relevant facts relevant to the cause of action are unknown at the date of accrual?
The date where claimant knows ‘the material facts about the damage in respect of which damages are claimed’
What is the period whereby one is no longer about to bring an action to enforce a judgement or recover interest?
After six years from when the judgment became enforceable
What is the general rule of limitation periods for bringing an action in tort?
The limitation period expires six years after the date on which the cause of action accrued
What is the general rule of limitation periods for bringing an action in contract?
The limitation period expires six years after the date on which the cause of action accrued
What happens if a claimant is under a disability at the time that the cause of action accrued in any of the following related claims?:
- Contribution
- Personal injury or fatal accident claims
- Most other cases
The limitation period starts to run from when the disability ends
What are the limitation periods for the following as soon as a claimant’s disability ends?:
- Contribution
- Personal injury or fatal accident claims
- Most other cases
- 2 years in relation to contribution
- 3 years in relation to personal injury or fatal accident claims
- 6 years in relation to most other cases
Who is under a disability for the purposes of periods of limitation?
- A minor (under the age of 18)
- Lacks the mental capacity to conduct the proceedings
When does the limitation period start to run where a claim is? :
a) based on fraud
b) any fact relevant to cause of action has been deliberately concealed by the defendant or
c) action is for relief from the consequences of a mistake
Until the claimant discovers the fraud, concealment or mistake
What can be deemed unreasonable conduct in pre-action protocols?
Silence in response to an opponent’s suggestion of ADR
What is the most likely consequence of non-compliance with pre-action protocols/Practice Direction on Pre-Action Conduct?
Related to costs and interests
What may the consequences of non-compliance to pre-action protocols look like?
Increasing the amount of costs/interest to be paid or
Decreasing the amount to be received
What is at the discretion of the courts if the relevant steps of the pre-action protocols haven’t been complied with?
The court may stay the proceedings until they’ve been taken
What will the court consider when deciding whether the impose a sanction for non-compliance?
The overall effect of the non-compliance on the other party
Unlikely sanctions will be imposed for minor infringements
TRUE OR FALSE
The court can ask for an explanation of non-compliance to pre-action protocols
True
What are the two limited circumstances whereby non-compliance with pre-action protocol/requiements may be acceptable?
a) where a limitation period is about to expire and therefore it may be necessary to issue proceedings [i.e., imminent expiry of a limitation period] or
b) where there is another reason for urgent proceedings or for the element of surprise
