Pre-action and starting a claim

What is the main aim of pre-action protocols?

Litigation should be a last resort, with ADR or informal resolution explored first.

What approach do pre-action protocols encourage between parties?

A “cards on the table” approach involving reasonable exchange of information and documents.

Can silence in response to an ADR proposal be unreasonable conduct?

Yes.

What are likely consequences of failing to comply with pre-action requirements?

Costs/interest sanctions and potentially a stay of proceedings until required steps are taken.

What will the court consider when sanctioning pre-action non-compliance?

The overall effect on the other party and any explanation for the failure.

When may issuing proceedings before completing pre-action steps be justified?

Where limitation is about to expire or urgent proceedings are otherwise necessary.

What should a claimant do if limitation requires proceedings to be issued before pre-action steps are complete?

Comply as far as possible, then ordinarily seek a stay so the remaining procedure can be followed.

Why might urgent proceedings justify not following ordinary pre-action steps first?

Where an element of surprise is necessary, e.g. obtaining a search order to prevent destruction of evidence.

Which general pre-action rules apply to all civil cases?

The Practice Direction – Pre-Action Conduct and Protocols.

What happens where a specific pre-action protocol conflicts with the general Practice Direction?

The specific protocol prevails.

When does the Pre-Action Protocol for Personal Injury Claims apply?

To PI claims not covered by another protocol and likely to be allocated to the fast track.

What value of PI claim is associated with the fast-track protocol?

Up to £25,000, though its spirit should also be followed in higher-value claims.

What is the consequence if a limitation period expires?

The defendant has a complete limitation defence.

What is the usual limitation period for personal injury and fatal accident claims?

3 years from accrual of the cause of action or the claimant’s date of knowledge, whichever is later.

What must the claimant know for the date-of-knowledge test in PI/fatal accident claims?

That the injury was significant, attributable at least partly to the wrongdoing, and the identity of the defendant.

What additional knowledge is required where wrongdoing was committed by someone other than the defendant?

The identity of that person and additional facts supporting a claim against the defendant.

Can constructive knowledge count for limitation purposes?

Yes; it includes knowledge reasonably expected to be acquired from experts or observable/ascertainable facts.

Can the limitation period for PI/fatal accident claims be extended?

Yes, under s 33 where equitable after balancing prejudice and relevant circumstances.

What is the limitation period for a contribution claim?

2 years from when the right to contribution arose.

When does the contribution limitation period begin after judgment?

When judgment imposing liability is given.

When does the contribution limitation period begin after an agreed payment?

When the amount to be paid is first agreed.

What is a latent damage claim?

A negligence claim where relevant facts were unknown when the cause of action accrued.

When does a negligence cause of action accrue for latent damage purposes?

When actionable damage is first sustained.

What limitation periods apply to latent damage negligence claims?

6 years from accrual or 3 years from the requisite knowledge and right to sue.

What is the long-stop period for latent damage claims?

15 years from the latest negligent act or omission causing the damage.

Do latent damage provisions apply to PI or fatal accident claims?

No.

What must a claimant know for latent damage limitation purposes?

The material facts about the damage for which damages are claimed.

What is the limitation period for enforcing a judgment?

6 years from when the judgment became enforceable.

What is the usual limitation period for tort claims?

6 years from accrual of the cause of action, beginning when actionable damage occurs.

What is the usual limitation period for contract claims?

6 years from the breach.

How does disability affect limitation under s 28 Limitation Act 1980?

If the claimant was under a disability when the cause accrued, limitation begins when the disability ends.

What limitation period applies after disability ends for contribution claims?

2 years.

What limitation period applies after disability ends for PI/fatal accident claims?

3 years.

What limitation period applies after disability ends in most other claims?

6 years.

What disabilities are relevant under s 28?

Minority and lack of mental capacity.

How does fraud, concealment or mistake affect limitation under s 32?

Time does not begin until the claimant discovers the fraud, concealment or mistake.

What claims are covered by s 32 Limitation Act 1980?

Claims based on fraud, deliberate concealment of relevant facts, or relief from the consequences of mistake.

Which courts have concurrent civil jurisdiction?

The High Court and County Court.

Which non-PI money claims must generally be issued in the County Court?

Claims up to £100,000.

Which PI claims must generally be issued in the County Court?

Claims under £50,000.

When may a non-PI claim be issued in either High Court or County Court?

Where it exceeds £100,000.

When may a PI claim be issued in either High Court or County Court?

Where it is £50,000 or more.

What must a High Court claim form for a money claim generally state?

That the claimant expects to recover more than £100,000.

What factors influence the choice between High Court and County Court?

Financial value, complexity and public importance.

What is disregarded when valuing a claim for jurisdictional purposes?

Interest, costs, counterclaims, contributory negligence and social security deductions.

When may a court transfer proceedings between High Court and County Court?

Where another court is more appropriate considering value, complexity, public importance, specialist judges and facilities.

What costs consequence may follow an unnecessary transfer?

The claimant may be ordered to pay the transfer costs.

What sanction can apply if a claim is wrongly begun in the High Court?

Costs awarded to the claimant may be reduced by up to 25%.

What is required to commence civil proceedings?

Issue and seal Form N1 and pay the court issue fee.

How many copies of the claim form are required?

One for the court, one for each defendant and one for the claimant.

What is the significance of the date of issue?

It stops limitation running and starts the period for service of the claim form.

How may simple County Court money claims be issued?

Through the Civil National Business Centre by post or online HMCTS.

What claims may be issued through the online process described here?

Money claims up to £100,000 against no more than two defendants.

Where may non-money-only County Court claims be issued?

At any County Court Hearing Centre.

Who normally serves the claim form?

Usually the court, unless the claimant elects to serve it.

How does the court usually serve a claim form?

By first-class post.

What happens if court service fails?

The claimant receives notice of non-service and must then serve the defendant.

What must a claimant do if they wish to serve the claim form themselves?

Notify the court, serve the sealed copies and ordinarily file a certificate of service within 21 days.

When is a certificate of service unnecessary after claimant service?

If all defendants acknowledge service within the 21-day period.

What methods may a claimant use to serve a claim form?

First-class post, personal service, leaving it at a permitted address, DX, authorised electronic means or another court-authorised method.

Where must service be made if the defendant has nominated a solicitor’s address in the jurisdiction?

At the solicitor’s address.

What is the normal service address for an individual?

Their usual or last known residence.

What is the normal service address for an individual sued in a business name?

Their usual/last known residence or principal/last known place of business.

What is the normal service address for a company or LLP registered in England and Wales?

Principal office or a place of business within the jurisdiction with a real connection to the claim.

When may a claim form be served by email or fax?

Only where the defendant has indicated willingness to accept service that way.

What is the deadline for serving a claim form within the jurisdiction?

The relevant step must be completed by midnight four calendar months after issue.

What is the relevant step for personal service?

Leaving the claim form with the defendant.

What is the relevant step for first-class post or DX?

Posting it or leaving it with the DX provider.

What is the relevant step for fax service?

Completing transmission.

What is the relevant step for electronic service?

Sending the email or transmission.

When should an application to extend time for serving a claim form normally be made?

Within the four-month period and supported by a good reason.

Is waiting for further evidence usually a good reason to extend service time?

No.

When may an extension application made after expiry succeed?

If the court failed to serve, or the claimant took all reasonable steps to comply, and the application is made promptly.

When must particulars of claim be served if not included in the claim form?

Within 14 days after service of the claim form and within the claim form’s four-month validity period.

What response documents accompany particulars contained in the claim form?

Form N9 response pack containing admission, defence and acknowledgment forms.

When must particulars of claim be filed at court after service?

Within 7 days of service unless already filed.

What methods may be used to serve documents other than a claim form?

Personal service, leaving/delivery at a permitted address, first-class post/DX, fax or email.

When is a claim form deemed served?

On the second business day after completion of the relevant step.

How are particulars served within the claim form treated for deemed service?

The claim-form service rules apply.

How are particulars served separately from the claim form treated?

As documents other than the claim form.

When are documents other than a claim form deemed served by an instant method before 4:30pm on a business day?

The same day.

When are documents other than a claim form deemed served by an instant method after 4:30pm or on a non-business day?

The next business day.

When are documents served by post or DX deemed served?

On the second day after posting/DX if that is a business day; otherwise the next business day.

What does CPR 6.15 allow?

Alternative service where there is good reason ordinary methods are ineffective or impossible.

What must an application for alternative service explain?

Why ordinary methods are unavailable/unsuccessful and the proposed alternative method.

What are examples of alternative service?

Service on unauthorised solicitors or newspaper advertisement.

Can the court validate steps already taken as good alternative service?

Yes.

Can CPR 6.15 retrospectively cure irregular service?

No.

What does CPR 6.16 allow?

The court may dispense with service.

When is service most likely to be dispensed with?

Where the other party is already aware of the document.

What are the claimant’s main statements of case?

Claim form, particulars of claim and any reply/defence to counterclaim.

What are the defendant’s main statements of case?

Defence and counterclaim.

What do statements of case generally contain?

The factual basis of the case and the relief sought or opposed.

What formal heading must a statement of case contain?

Court/division, case number, full party names and each party’s status.

What must appear at the end of a statement of case?

A statement of truth.

What does a statement of truth confirm?

Honest belief in the truth of the facts stated.

What warning accompanies a statement of truth?

False statements made without honest belief may lead to contempt proceedings.

How should statements of case be drafted?

Concisely, clearly, correctly and in a uniform format.

What formatting should statements of case generally use?

Numbered paragraphs, consecutive page numbers, figures for dates/numbers and identification of the drafter.

What is the claim form?

The claimant’s first statement of case, usually Form N1.