Unit 3 Pre-Action Protocol Flashcards
What will the court have expected parties to have done prior to commencing proceedings?
- 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.
What is the rule regarding the costs incurred in adhering to pre-action protocol?
Proportionality. 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.
The costs incurred in complying with a pre-action protocol or this Practice Direction should be proportionate. 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.
Where this no relevant pre-action protocol what should the parties ensure is done ahead of issuing proceedings?
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.
What are the rules for expert evidence in Pre-Action Protocol?
- Need the courts permission to rely on it
- The court can limit the amount of fees recoverable
- Parties should consider using a single joint expert and sharing the costs equally.
What conditions would a court consider that there has been a failure of compliance?
The court may decide that there has been a failure of compliance when a party has—
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; or
c. unreasonably refused to use a form of ADR or failed to respond to an invitation to do so.
What may the court order if it finds a failure to comply with PAP?
a. the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction;
b. the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction;
c. sanctions are to be applied.
What sanctions will the court consider awarding a party in breach of PAP?
a. an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties;
b. an order that the party at fault pay those costs on an indemnity basis;
c. if the party at fault is a claimant 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 have been awarded;
d. if the party at fault is a defendant, and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate, (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.
What should a party do that needs to bring proceedings before the PAP is complete due to a statutory limitation expiring?
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.
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.
Are admissions made in the PI PAP process binding on that party?
Yes. An admission made by any party under this Protocol may well be binding on that party in the litigation.
If the defendant admits liability in a PI case, what should the claimant send to the defendant, prior to issuing proceedings?
The Claimant should first send the defendant:
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.
When is it ok not to follow PAP?
• Urgency – about to be time barred/limitation period is about to expire
o If this is the case, it is best that the parties issue the claim, and then ask that the proceedings are ‘stayed’ to allow more time to undertake appropriate PAP.
• Injunctions – are sought as a matter of great urgency. In such cases, although every effort may be made to notify the defendant, regular correspondence are not possible.
o Certain types of injunction, e.g. freezing of assets, you don’t inform the defendant that this is about to happen, so PAP is impractical
• Search Orders – undermines the point of the order to follow PAP and alert the defendant.
o Also relevant in Fraud cases.
o Domestic violence orders
Can the courts compel parties to take part in ADR?
No they can only encourage (Halsey – they concluded it would restrict the right to a fair trial).
Established position in the UK – whilst the courts may strongly encourage parties to take part in ADR, including applying cost sanctions for unreasonable refusal to consider ADR, that power stops short of compelling unwilling parties to do so. Such compulsion would amount to an obstruction of their right to a courts, conflicting with their Article 6 Rights.
What are Special Damages in PI?
Actual financial loss as a result of the injury, e.g. hospital/prescription costs, specific quantifiable financial loss that stemmed directly from the accident
What are General Damages in PI?
Costs that cannot be quantified – Pain, Suffering, Loss of Amenity (PSLA) and Future Loss of Earnings.
