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Pre Action Protocols Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

Updates Available  

A more recent version of these Pre Action Protocols notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Civil Ligitation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

PRE-ACTION PROTOCOLSco-operation facilitates settlement at early stage - encourage exchange of information and ADRdeparture from protocol must be explained to court, and may attract sanctionsApply to 3rd party and normal proceedingsMoJ has published 12 pre-action protocols, and PD on pre-action conduct:

1. Practice Direction - Pre-Action Conduct

2. Pre-Action Protocol for PI Claims

3. Pre-Action Protocol for Resolution of Clinical Disputes

4. Pre-Action Protocol for the Construction and Engineering Disputes

5. Pre-Action Protocol for Defamation

6. Professional Negligence Pre-Action Protocol

7. Pre-Action Protocol for JR

8. Pre-Action Protocol for Disease and Illness Claims

9. Pre-Action Protocol for Housing Disrepair Claims

10. Pre-Action Protocol for Possession Claims based on Rent Arrears

11. Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in respect of Residential Property

12. Pre-Action Protocol for Low Value PI Claims in RTAs

13. Pre-Action Protocol for Claims for Damages in Relation to the Physical State of a Commercial Property at Termination of a Tenancy (the Dilapidations Protocol) PD ON PRE-ACTION CONDUCT (cases not covered by specific protocol) The protocol Annex A - applies to straightforward claims likely to be disputed Annex C - guidance on instructing experts Annex B - information to be provided in debt claims where C = business and D = individualDoes not apply to

o o o?

consent orders most applications for directions by a fiduciary without notice applications e.g. freezing orders

Approach of the courts

o

court can take into account extent parties comply when giving case management directions r3.1(4) and (5), r3.9(1)(e)

o o o

court expect parties to have complied court may expect parties to explain non-compliance court consider:compliance in substance ? minor shortcomings okproportionality of steps v importance of matterurgency of matter - if urgent, parties only expected to comply as far as reasonable

Sanctions for non-compliance

o

court consider overall effect of non-compliance on other party

oif court decides has been non compliance sanctions court may impose:order of stay till steps doneorder party at fault to pay costs proportionate to breachorder party at fault to pay costs on indemnity basisif winning C at fault, deprive of interest on damages/reduce rateif D at fault, increase interest on damagespay money into court - r3.1(5)

Principles governing pre-action conduct where no specific protocol

o

unless circumstances make it inappropriate, before starting proceedings parties should:oexchange sufficient info about matter toallow them to understand each other's positionmake informed decision about settlement and how to proceedtry to resolveconsider ADR, throughout proceedings

act reasonably and proportionatelycosts should be proportionate to complexity of matter and money at stakemust not use PD tactically

Exchanging information before starting proceedings

o

o

debt claims only - at any time before letter of claim, C shouldprovide details of how money can be paidstate that D can contact C to discuss repayment, including contact detailsinform D that free debt advice is available and where from

C should set out details in letter of claimgive concise details to allow D to understand and investigate w/o needing to request further info:letter should include

o o o o o obasis on which claim made summary of facts remedy desired if financial loss claimed explanation of how calculated details of any funding arrangement of C

letter should also

o o o oC's full name and address

list essential documents C intends to rely on set out form of ADR, invite D to agree state date C considers reasonable for D to respond by ID and ask for copies of any relevant documents not in C's possession and which C wants to see

unless D known to be legally represented, letter should

o

o

refer D to PD pre-action conduct, especially sanctions for noncompliance

o

inform D that ignoring letter may lead to C starting proceedings and increase D's costs

D should provide full written response w/in reasonable period:?

reasonable:simple matter 14 days3rd party involved 30 dayscomplex matter 30+ daysexceptional circumstances 90+ days

if D cannot provide full response ? should provide - w/in 14 days - written acknowledgement instead:state whether insurer involvedstate date by which D / insurer will provide full written response

o

if later than that C stated as reasonable in letter of claim, D should give reasons

o

if C starts proceedings before this date, court consider whether period specified by D reasonablemay request further info to enable full responseif D cannot provide full response because intends to seek (debt) advice

o

o o? state:seeking (debt) advicefrom whomwhen D expects to have received advice

C should allow up to 14 days for D to obtain advice debt claims only - BUT C need not allow D time if C knows:D already received debt advice and circumstances haven't changedD has previously requested time to seek debt advice and hasn't

full written response should

o oaccept claim in whole / part; or deny liability

if C accepts in part / denies liability, response should

o

give reasons, IDing which facts accepted / disputed and basis of dispute

o o

state whether D will counterclaim (give details cf letter of claim)

o

state if D agrees to C's suggestion of ADR and if not, suggest alternative

o

list essential documents D intends to rely on

state whether D alleges C wholly or partly to blame and summarise facts relied on

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