Full and in-depth structure and notes on pre-action conduct and rules. A highly detailed and clearly written step-by-step approach to understanding and answering exam questions. The document breaks down each element you need to cover to answer a question on this topic. Contains extensive but easily...
The aims of the Practice Direction and approved pre-action protocols
Are:
(a) to initiate and increase pre-action contact between the parties;
(b) to encourage better and earlier exchange of information;
(c) to encourage better pre-action investigation by both sides;
(d) to put the parties in a position where they may be able to settle cases fairly and early without
litigation;
(e) to enable proceedings to run to the court’s timetable and efficiently, if litigation does become
necessary.
Steps parties must take before issuing proceedings:
Under para 3 – the court will have expected the parties to have exchange sufficient information to be able to:
a. Understand each other’s position
b. Make decisions on how to proceed
c. Try and settle the case without proceedings
d. Consider ADR to assist with settlement (reinforced under para 8)
e. Support the efficient management of such proceedings
f. Reduce costs for resolving the dispute.
Under para 6 – where there is a pre-action protocol, parties should comply with this before commencing proceedings. This will
be:
a. C writing to D with concise details of the claim – Letter before claim
b. D responding to the LBC within a reasonable time
c. Parties then proceeding to disclose key documents relevant to disputed issues.
Compliance with the Practice directions and pre-action conduct and protocols:
Para 13 – if the dispute leads to proceedings, the court will expect pre-action conduct, protocols and PD’s to have been complied
with.
The court will take into account any non-compliance when considering:
The management of the case (CPR 3.14(-6))
When making any orders for Costs (CPR 44.3(5)(a)).
Para 14 – a failure of compliance is likely to be found by the court when:
A party has not provided sufficient information for the objectives under para 3 to be met, or
A party has not acted within a specified time period set out under a relevant protocol or within a reasonable time, or
A party has unreasonably refused to use a form of ADR or refused to respond to an invitation for such.
Para 15 – where there has been non-compliance, a court may order:
For parties to be relieved of further compliance with pre-action protocols and conduct, or
Stay proceedings until compliance has occurred.
Para 16 – non-compliance sanctions may be imposed by the court – such as:
Party at fault pays the costs of the proceedings or part of the costs of the other party.
Order the party at fault to pay costs on an indemnity basis
If the party at fault is the claimant who has been awarded a sum of money – Make an order depriving C of interest on
that sum for a specified period or order interest at a lower rate than usually ordered.
If the party at fault is the defendant and the claimant has been awarded a sum of money – Make an order awarding
higher interest on that sum for a specified period at a rate (not exceeding 10% above base rate) than usually ordered.
, Pre-Action Protocols & general Pre-Action
PRE-ACTION CORRESPONDENCE
THE LETTER BEFORE CLAIM:
Under PD-PACP para 6(a) – the claimant must write to the defendant setting out:
The basis of the claim
A summary of the facts
What the claimant is seeking from the defendant
And if seeking money from the defendant, a calculation of how the claimant has come to the
specific amount.
ADR: It is also good practice for the letter to invite the defendant to engage with some form of ADR
and the solicitor should advice the claimant to this. Under PD-PACP para 3 and 8, ADR should attempt
to settle the dispute via ADR and litigation is a last resort.
Time to respond: The letter should also include a reasonable time period given to the defendant in
which to respond to the claim. This will depend on the complexity of the claim, but also if the defendant
is known to be unrepresented then additional time should be given. The normal period is for the
defendant to acknowledge service or respond to the LBC within 14 days from receiving the LBC.
If D is unrepresented: The letter should also point D to the PD-PACP’s, in particular para 16 about
non-compliance and possible sanctions. Inform D that ignoring the LBC could result in C applying for
default judgement.
** in the case of professional negligence, a preliminary notice of claim should be sent first, and the
letter communicating the claim is known as the ‘letter of claim’ under the professional negligence pre-
action protocol.
PROFESSIONAL CONDUCT POINT:
If D is not represented send LBC to D
If D is represented send letter to DS – to send to D and not DS: breach of principle 5 (act with
integrity) and para 1.2 (not to abuse the solicitor’s position by taking unfair advantage of others)
Content for drafting the letter before claim:
(1) state the claimant’s full name and address;
(2) state the basis on which the claim is made (ie why the claimant says the defendant is liable);
(3) provide a clear summary of the facts on which the claim is based;
(4) state what the claimant wants from the defendant;
(5) if financial loss is claimed, provide an explanation of how the amount has been calculated;
(6) list the essential documents on which the claimant intends to rely;
(7) set out the form of ADR (if any) that the claimant considers the most suitable and invite the
defendant to agree to this;
(8) state the date by which the claimant considers it reasonable for a full response to be provided by
the defendant; and
(9) identify and ask for copies of any relevant documents not in the claimant’s possession and which
DEFENDANTS LETTER OF ACKNOWLEDGEMENT / LETTER OR RESPONSE:
LETTER OF ACKNOWELDGEMENT:
Under PD-PACP para 6(b), the defendant should respond to the LBC. However, if the defendant
requires more time to prepare a response then the defendant should inform the claimant of this and
do so within the deadline set in the LBC.
LETTER OF RESPONSE:
Under PD-PACP para 6(b), the defendant should respond to the LBC and include:
Whether the claim is accepted or if not, reasons why it is not accepted
Explanation of the facts or parts which are disputed
Whether the defendant is making aby counterclaim.
(additional ULAW content)
Whether D agrees to ADR
List copies of docs D requires and attach docs C requested.
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