Pre-action protocols PDF

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Summary

Pre-Action Protocols A number of pre-action protocols exist: (1) Personal Injury (2) Low Value RTAs (3) Clinical Negligence (4) Disease and Illness (5) Possession Claims for Rent Arrears (6) Housing Disrepair (7) Possession Claims for Rent Arrears (8) Commercial Property Dilapidations (9) Constructi...

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Pre-Action Protocols A number of pre-action protocols exist: (1) Personal Injury (2) Low Value RTAs (3) Clinical Negligence (4) Disease and Illness (5) Possession Claims for Rent Arrears (6) Housing Disrepair (7) Possession Claims for Rent Arrears (8) Commercial Property Dilapidations (9) Construction and Engineering (10) Professional Negligence (11) Defamation (12)JR (13) Low Value PI in Employers’ Liability and Public Liability Claims

General Cases - Practice Direction Pre-Action Conduct Claimant’s letter before claim. Should include: (i) C’s full name and address; (ii) Basis on which claim is made; (iii) Clear summary of facts on which claim is based; (iv) What remedy C wants from D (if financial set out explanation of how amount calculated); (v) List essential docs on which C intends to rely; (vi) Set out form of ADR C considers most suitable and invite D to agree to this; (vii) Set date by which C considers it reasonable for a full response to be provided by D; (viii)Identify and ask copies of any relevant docs not in C’s possession and which C wishes to see 2. If C or D entered into CFA or taken out ATE insurance, must notify other side immediately. 3. D has reasonably time to reply – based on nature of case (14 days for a simple debt to 90 days for more complex matters) 4. D replies to letter before claim (indicates whether liability accepted in full, in part or denied) 5. Preliminary exchange of documents (Note: their use is limited to the purpose of resolution of this dispute 6. Negotiation or ADR considered (both parties should retain evidence of having at least considered this)

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Pre-Action Conduct for PI Claims Low Value RTAs (£1,000 to £10,000) – covered by the specific Low Value RTA protocol. PI protocol Primarily designed for PI up to £25,000. However, spirit should be followed in higher value cases. 1. C sends informal letter to D or D’s Insurer 2. C sends D a letter before claim (a) Clear summary of facts (b) Nature of injuries (c) Financial loss incurred (d) Sufficient information for D to investigate 3. D’s acknowledgment within 21 days naming an insurer 4. D investigates – has 3 months 5. D Disputes – denial letter and discloses all documents relevant to liability 6. If Contributory Negligence alleged by D, C should respond within reasonable time, and before proceedings are issued. 7. Medical Evidence must be obtained based on C’s injuries 8. Negotiation or ADR considered.

Sanctions for failure to comply with Protocols Non- compliance may be justified in some circumstances. The Court will: - Look at the substance and is not likely to be concerned with minor or technical shortcomings; - Consider the proportionality of the steps taken compared to the size and importance of the matter; - Take into account urgency of the matter; - Take into account Limitation. Examples of non-compliance:  Not providing sufficient information to other party;  Not acting within time limits/reasonable time period;  Unreasonably refusing to consider ADR;  Without good reason refusing to disclose documents requested. If Court decides to impose a sanction, it may: - Order a stay of proceedings to allow compliance; - Order party at fault to pay costs on indemnity basis; - If party at fault is C who eventually succeeds, deprive C of interest, or award interest at a lower rate; - If party at fault D who eventually loses, award interest at a higher rate...