Civil Litigation Notes
Pre-action considerations
Pre-Action Protocols
Practice Direction – Pre-Action Conduct (PDPAC)
• Paragraph 3 – Objectives of pre-action conduct and protocols
o Ensure the parties have exchanged sufficient information to:
§ (a) Understand each other’s position
§ (b) Make decisions about how to proceed
§ (c) Try to settle
§ (d) Consider ADR
§ (e) Support efficient management of proceedings
§ (f) Reduce costs of resolution
o Encourages:
§ Early contact, discussions and exchange of information
§ Full pre-action investigation of the claim
1
, § Parties to resolve the claim early and fairly by negotiation or ADR
without the need for litigation, which is a last resort (Paragraph 8)
§ Claimant should write to the defendant with concise details of the
claim, including the amount claimed; D should respond in reasonable
time accepting or rejecting the claim (Paragraph 6)
§ Always consider reaching settlements, e.g. Part 36 offer (Paragraph 9)
• Main takeaways:
o Litigation should be a last resort (paragraph 8)
o Potential claimants must comply with the CPRs
§ Send a letter before claim (paragraph 6)
o The letter before claim must meet the requirements in PDPAC
§ Must be a genuine attempt to settle
Professional Negligence Pre-Action Protocol
• Applies when a claimant wishes to claim against a professional (other than
construction or healthcare providers) as a result of that professional’s alleged
negligence or equivalent breach of contract or breach of fiduciary duty (Paragraph
1.1)
• Claimant sends Defendant a preliminary notice (should be sent as soon as C decides
there is a reasonable chance it will bring a claim (para 5.1) e.g. after first meeting
with solicitor or when they formally instruct a solicitor to proceed)
• Defendant acknowledges preliminary notice within 21 days of receipt (para 5.4)
• Claimant sends Defendant a detailed letter of claim (sent as soon as C decides there
are grounds for claim (para 6.1))
o Contents set out in paras 6.2
o Open letter can be used in subsequent litigation as evidence
• D writes a letter of acknowledgement to letter of claim within 21 days of receiving it.
D has three months to investigate claim (para 8.2)
• After D completes investigations, write a letter of response and/or letter of
settlement to C
o Letter of response is an ‘open’ letter, letter of settlement is an ‘without
prejudice’ and cannot be used in subsequent litigation
o Contents set out in para 9.2.1
• If D makes an offer to settle in the letter of settlement and/or admits part of the
claim, the parties should then negotiate for up to six months from the date of the
letter of acknowledgement in response to the letter of claim (furthering the aim of
avoiding litigation where possible (furthering the aim of avoiding litigation where
possible – para 2.2)
• If C and D don’t reach an agreement, C should, where possible, give 14 days written
notice to D before proceedings are issued (para 14.3)
Costs consequences for failing to comply
• Paragraph 13 – Compliance with this PD and the Protocols
o The court will consider substantial non-compliance when giving directions for
the management of proceedings (CPR 3.1(4) to (6)) and when making an
order for costs (CPR 44.3(5)(a))
2
, § The court is not interested in technical or minor shortcomings
• Paragraph 16 lists sanctions
Costs
• CPR 44.2(2)(a) -> the unsuccessful party pays the successful party’s costs
• Court considers conduct of parties (including the extent to which parties followed
PD, PAC or any other relevant protocol) when exercising discretion as to costs order
o CPR 44.(1) – who pays, how much and when
o CPR 44.2(4) – factors affecting how much is payable
o CPR 44.2(5)(a) – failure to comply with pre-action protocol is a consideration
• Winner never gets 100% - the client will pay the shortfall
o Code of conduct = must inform client that they will not recover all costs and
provide costs information throughout the matter
Advantages/Disadvantages of litigation
Consider in the context of the claim at hand!
Advantages Disadvantages
Large sums at stake Costly, time consuming (disruption to
business) and risky
Defendant may be insured or have deep Difficulty in raising finance
pockets
Publicity – pressure to settle to protect Some costs are unrecoverable (e.g. time
reputation away from running a business)
Uncertainty on the opposition’s side of the Uncertainties of litigation
ultimate result
Lack of evidential difficulties Difficulty of proving negligence
Impact on reputation
Risk of paying substantial sums if you lose,
along with the other side’s costs and fees
(especially if they consult top city firms and
counsel)
Consider the case as a lawyer – is there a duty, breach, causation and
loss?
• Contract
o Duty
§ Express oral terms
§ Express written terms
§ Implied terms to provide services with reasonable skill and care
pursuant to s.13 Supply of Goods and Services Act 1982
§ Implied terms to provide goods that are of satisfactory quality and fit
for purpose pursuant to s.14 Sale of Goods Act 1979
o Breach
§ Claimant must prove that a term (or several) were breached
3
, • Tort
o Duty of care
o Breach – D breached that legal duty by act or omission
o Damage
o Causation
o Remoteness
Limitation Periods
• Contract: 6 years from the date the cause of action accrued (the breach)
• Tort: 6 years from the date of loss
High Court Divisions
• Queen’s Bench: contract/tort cases
o Commercial Court: requires specialist commercial knowledge e.g. banking,
shipping, insurance
o Technology and Construction Court: requires specialist technical knowledge
e.g. professional negligence case against engineers
• Chancery: land/trust cases (and contract/tort claims if connected with land or
property)
o Companies Court: CA 2006, Insolvency
o Patents Court and Intellectual Property Enterprise Court
• Professional negligence claims can be commenced in QB or Chancery
Which Court?
• A claim should be commenced where it is likely to be tried (CPR 7A PD)
• Where to start proceedings? (7A PD 2.1)
o Claim less than or equal to £100,000 = County Court
o Claim more than £100,000 = either High Court or County Court
o If there is a choice, consider the financial value, complexity and public
importance of the case (7A PD 2.4)
§ If only slightly above £100k (e.g. £125k), can maybe go to County
Court if not complex or of high public importance
o The value of a claim = financial worth (CPR 16.3(6))
§ Disregarding interests, costs, counterclaims, contributory negligence,
deduction of social security benefits, legal fees in pursing claim
• Rules governing transfer between courts (CPR 30)
o Criteria for transfers between the County Court and High Court set out in CPR
30.3(2)
§ Financial value and amount in dispute, convenient/fair, availability of
judge specialising in type of claim, complexity, public importance,
court facilities (e.g. for witness disabilities, security, special measures)
o Claims under £100,000 issued in the High Court will generally be transferred
to the County Court (29 PD 2.2)
4
Pre-action considerations
Pre-Action Protocols
Practice Direction – Pre-Action Conduct (PDPAC)
• Paragraph 3 – Objectives of pre-action conduct and protocols
o Ensure the parties have exchanged sufficient information to:
§ (a) Understand each other’s position
§ (b) Make decisions about how to proceed
§ (c) Try to settle
§ (d) Consider ADR
§ (e) Support efficient management of proceedings
§ (f) Reduce costs of resolution
o Encourages:
§ Early contact, discussions and exchange of information
§ Full pre-action investigation of the claim
1
, § Parties to resolve the claim early and fairly by negotiation or ADR
without the need for litigation, which is a last resort (Paragraph 8)
§ Claimant should write to the defendant with concise details of the
claim, including the amount claimed; D should respond in reasonable
time accepting or rejecting the claim (Paragraph 6)
§ Always consider reaching settlements, e.g. Part 36 offer (Paragraph 9)
• Main takeaways:
o Litigation should be a last resort (paragraph 8)
o Potential claimants must comply with the CPRs
§ Send a letter before claim (paragraph 6)
o The letter before claim must meet the requirements in PDPAC
§ Must be a genuine attempt to settle
Professional Negligence Pre-Action Protocol
• Applies when a claimant wishes to claim against a professional (other than
construction or healthcare providers) as a result of that professional’s alleged
negligence or equivalent breach of contract or breach of fiduciary duty (Paragraph
1.1)
• Claimant sends Defendant a preliminary notice (should be sent as soon as C decides
there is a reasonable chance it will bring a claim (para 5.1) e.g. after first meeting
with solicitor or when they formally instruct a solicitor to proceed)
• Defendant acknowledges preliminary notice within 21 days of receipt (para 5.4)
• Claimant sends Defendant a detailed letter of claim (sent as soon as C decides there
are grounds for claim (para 6.1))
o Contents set out in paras 6.2
o Open letter can be used in subsequent litigation as evidence
• D writes a letter of acknowledgement to letter of claim within 21 days of receiving it.
D has three months to investigate claim (para 8.2)
• After D completes investigations, write a letter of response and/or letter of
settlement to C
o Letter of response is an ‘open’ letter, letter of settlement is an ‘without
prejudice’ and cannot be used in subsequent litigation
o Contents set out in para 9.2.1
• If D makes an offer to settle in the letter of settlement and/or admits part of the
claim, the parties should then negotiate for up to six months from the date of the
letter of acknowledgement in response to the letter of claim (furthering the aim of
avoiding litigation where possible (furthering the aim of avoiding litigation where
possible – para 2.2)
• If C and D don’t reach an agreement, C should, where possible, give 14 days written
notice to D before proceedings are issued (para 14.3)
Costs consequences for failing to comply
• Paragraph 13 – Compliance with this PD and the Protocols
o The court will consider substantial non-compliance when giving directions for
the management of proceedings (CPR 3.1(4) to (6)) and when making an
order for costs (CPR 44.3(5)(a))
2
, § The court is not interested in technical or minor shortcomings
• Paragraph 16 lists sanctions
Costs
• CPR 44.2(2)(a) -> the unsuccessful party pays the successful party’s costs
• Court considers conduct of parties (including the extent to which parties followed
PD, PAC or any other relevant protocol) when exercising discretion as to costs order
o CPR 44.(1) – who pays, how much and when
o CPR 44.2(4) – factors affecting how much is payable
o CPR 44.2(5)(a) – failure to comply with pre-action protocol is a consideration
• Winner never gets 100% - the client will pay the shortfall
o Code of conduct = must inform client that they will not recover all costs and
provide costs information throughout the matter
Advantages/Disadvantages of litigation
Consider in the context of the claim at hand!
Advantages Disadvantages
Large sums at stake Costly, time consuming (disruption to
business) and risky
Defendant may be insured or have deep Difficulty in raising finance
pockets
Publicity – pressure to settle to protect Some costs are unrecoverable (e.g. time
reputation away from running a business)
Uncertainty on the opposition’s side of the Uncertainties of litigation
ultimate result
Lack of evidential difficulties Difficulty of proving negligence
Impact on reputation
Risk of paying substantial sums if you lose,
along with the other side’s costs and fees
(especially if they consult top city firms and
counsel)
Consider the case as a lawyer – is there a duty, breach, causation and
loss?
• Contract
o Duty
§ Express oral terms
§ Express written terms
§ Implied terms to provide services with reasonable skill and care
pursuant to s.13 Supply of Goods and Services Act 1982
§ Implied terms to provide goods that are of satisfactory quality and fit
for purpose pursuant to s.14 Sale of Goods Act 1979
o Breach
§ Claimant must prove that a term (or several) were breached
3
, • Tort
o Duty of care
o Breach – D breached that legal duty by act or omission
o Damage
o Causation
o Remoteness
Limitation Periods
• Contract: 6 years from the date the cause of action accrued (the breach)
• Tort: 6 years from the date of loss
High Court Divisions
• Queen’s Bench: contract/tort cases
o Commercial Court: requires specialist commercial knowledge e.g. banking,
shipping, insurance
o Technology and Construction Court: requires specialist technical knowledge
e.g. professional negligence case against engineers
• Chancery: land/trust cases (and contract/tort claims if connected with land or
property)
o Companies Court: CA 2006, Insolvency
o Patents Court and Intellectual Property Enterprise Court
• Professional negligence claims can be commenced in QB or Chancery
Which Court?
• A claim should be commenced where it is likely to be tried (CPR 7A PD)
• Where to start proceedings? (7A PD 2.1)
o Claim less than or equal to £100,000 = County Court
o Claim more than £100,000 = either High Court or County Court
o If there is a choice, consider the financial value, complexity and public
importance of the case (7A PD 2.4)
§ If only slightly above £100k (e.g. £125k), can maybe go to County
Court if not complex or of high public importance
o The value of a claim = financial worth (CPR 16.3(6))
§ Disregarding interests, costs, counterclaims, contributory negligence,
deduction of social security benefits, legal fees in pursing claim
• Rules governing transfer between courts (CPR 30)
o Criteria for transfers between the County Court and High Court set out in CPR
30.3(2)
§ Financial value and amount in dispute, convenient/fair, availability of
judge specialising in type of claim, complexity, public importance,
court facilities (e.g. for witness disabilities, security, special measures)
o Claims under £100,000 issued in the High Court will generally be transferred
to the County Court (29 PD 2.2)
4
