Norwich Pharmacal Application
05 December 2022 22:28
Civil Lit Page 1
,Pre action protocol
28 March 2023 01:44
1) Pre-action protocol
a. Designed to encourage the early settlement of cases before proceedings are
commenced in court.
b. Also encourages the parties to exchanged information about their claim or defence
c. Also to enable the proceedings, once issued, to proceed expeditiously if a settlement
cannot be achieved
d. If there is no specific pre action protocol for a specific claim, then the parties must use
the Practice Direction Pre-Action Conduct and Protocols
1) Important things
a. If no specigic pre action protocol
i. Follow Practice Direction Pre-Action Conduct and Protocols
1) These will include
a) Claimant writing to the defendant with concise details of the claim,
including:
i) the basis on which the claim is made
ii) A summary of the facts
iii) What the claimant wants from the defendant
iv) If money, how the amount is calculated
b) The defendant responding within a reasonable time
i) 14 days in a straightforward case
ii) No more than 3 months in a very complex one
iii) The reply should include
Confirmation as to whether the claim is accepted
If it is not accepted, the reasons why together with an
explanation as to which facts and parts of the claim are
disputed
Whether the defendant is making a counterclaim and
provide details on this
c) The parties disclosing key documents relevant to the issues in dispute.
b. Failure to resolve dispute after the parties have followed a pre-action protocol
i. If ^ this happens, the parties should:
1) Review their respective positions
2) Consider the papers and the evidence to see if proceedings can be avoided
3) Narrow the issues in dispute before the claimant issues proceedings
c. The Personal Injury Pre-Action Protocol encourages the parties to jointly select an
expert.
d. whereas the PD Pre-Action Conduct and Protocols (which applies here) encourages the
parties to jointly instruct an expert, particularly in low-value claims
Civil Lit Page 2
,Commencing proceedings
01 April 2023 15:24
Marshall v Maggs CA
- The court can allowan application to extend time prospectively under 7.6(2) without being
satisfied that C has taken all reasonable steps to comply with 7.5 under an application made
under 7.6(3).
Part 7 proceedings
- How to start proceedings
○ Proceedings are started when the court issues a claim form at the request of the
claimant
▪ Claim form
□ A formal, concise statement of the claimant's case
□ This must include the cause of action relied on and the nature of the relief
sought.
- Effect of issue
○ The issue of a claim form stops time running for limitation
○ It also sets in motion a timeline for the case.
- Service of a claim form
○
Notes Time limit
Within England or Wales 4 months
Rest of the world 6 months
- Act of service of the claim form
○ Must complete the relevant act of service to effect service + serve the Particulars of
Claim before midnight on the calendar day 4 months after the claim form is issued (4
months and before 12 midnight)
▪ Purposes of service
□ To inform the defendant of the nature of the claimants case
□ To assert jurisdiction of the court over the claim
○ Methods of service and steps required
Method of service Step Required
First class post, Posting, leaving with delivering to or
document exchange or collection by the relevant service
other service which provider
provides for delivery on
the next business day
Delivery of the document Delivering to or leaving the document
to or leaving it at the at the relevant place
relevant place
Personal service under Completing the relevant step required
rule 6.5 by rule 6.5 (3)
Electronic method Sending the e-mail or other electronic
transmission
- Particulars of claim
○ The document which sets out the claimant's case in more detail
The person gets a choice of how to serve it, but must either be contained in or served
Civil Lit Page 3
, ○ The person gets a choice of how to serve it, but must either be contained in or served
with the claim form to avoid a time limit
○ If once chooses to serve the PoC on the defendant as a separate document, this must be
done within 14 days of the service of the claim form
○ So within the 4 months period one MUST SERVE Claim form + Particulars of Claim before
12 midnight of the last day.
- Deemed service
○ The second business day after the act of service of the claim form
- Part 8 claim forms (automatically multi track)
○ The other main kind of way to start proceedings
○ Have small differences from Part 7 claims
i. Evidence must be served at the same time as the claim form
ii. A defendant does not need to file a defence
iii. Defendant MUST acknowledge service within 14 days of service of the claim form
iv. The defendant mut also file and serve its written evidence
○ What type of cases uses Part 8
▪ Where the facts are not in contest or in dispute
▪ If a dispute involving a child or protected party settles before proceedings are
initiated, Part 8 can be used to obtain the court's approval for that settlement
▪ May also be issued in advance of an expert determination to decide any disputes
about the interpretation of the expert determination clause
- Extending time for service of the claim form
○ Applications within the 4-month period
▪ The test that the court will apply
□ Main Test: there must be good reason for inability to serve in time
The weaker the reason the more likely the court will be to refuse the
application
□ Overriding objective
The court will also look at
◊ All the circumstances
◊ Pre-action conduct of the parties
□ Limitation
A claimant who only issues the claim form near the end of the
limitation period is not likely to receive a successful application
If there is a good reason for the delay, the court will then balance the
hardship between the parties.
○ Applications after the 4-month period
▪ The court may only make this order if
□ the claimant has failed to serve the claim form OR
□ The claimant has taken all reasonable steps to comply with r7.5 (rules on
service of the claim form) but still has been unable to serve the claim form
▪ Test: the claimant must satisfy the court that it has been prompt in bringing the
application for extension
□ The courts will focus on what steps have been taken and whether they were
reasonable
□ This is a super difficult test to satisfy
- Deemed service of court documents , other than the claim form
○
First Class Post The second day it was posted,
Document Exchange provided it was a business day,
if not, the next business day
after that
Delivering the document to or leaving it at a permitted address If done before 4.30pm, deemed
Civil Lit Page 4
05 December 2022 22:28
Civil Lit Page 1
,Pre action protocol
28 March 2023 01:44
1) Pre-action protocol
a. Designed to encourage the early settlement of cases before proceedings are
commenced in court.
b. Also encourages the parties to exchanged information about their claim or defence
c. Also to enable the proceedings, once issued, to proceed expeditiously if a settlement
cannot be achieved
d. If there is no specific pre action protocol for a specific claim, then the parties must use
the Practice Direction Pre-Action Conduct and Protocols
1) Important things
a. If no specigic pre action protocol
i. Follow Practice Direction Pre-Action Conduct and Protocols
1) These will include
a) Claimant writing to the defendant with concise details of the claim,
including:
i) the basis on which the claim is made
ii) A summary of the facts
iii) What the claimant wants from the defendant
iv) If money, how the amount is calculated
b) The defendant responding within a reasonable time
i) 14 days in a straightforward case
ii) No more than 3 months in a very complex one
iii) The reply should include
Confirmation as to whether the claim is accepted
If it is not accepted, the reasons why together with an
explanation as to which facts and parts of the claim are
disputed
Whether the defendant is making a counterclaim and
provide details on this
c) The parties disclosing key documents relevant to the issues in dispute.
b. Failure to resolve dispute after the parties have followed a pre-action protocol
i. If ^ this happens, the parties should:
1) Review their respective positions
2) Consider the papers and the evidence to see if proceedings can be avoided
3) Narrow the issues in dispute before the claimant issues proceedings
c. The Personal Injury Pre-Action Protocol encourages the parties to jointly select an
expert.
d. whereas the PD Pre-Action Conduct and Protocols (which applies here) encourages the
parties to jointly instruct an expert, particularly in low-value claims
Civil Lit Page 2
,Commencing proceedings
01 April 2023 15:24
Marshall v Maggs CA
- The court can allowan application to extend time prospectively under 7.6(2) without being
satisfied that C has taken all reasonable steps to comply with 7.5 under an application made
under 7.6(3).
Part 7 proceedings
- How to start proceedings
○ Proceedings are started when the court issues a claim form at the request of the
claimant
▪ Claim form
□ A formal, concise statement of the claimant's case
□ This must include the cause of action relied on and the nature of the relief
sought.
- Effect of issue
○ The issue of a claim form stops time running for limitation
○ It also sets in motion a timeline for the case.
- Service of a claim form
○
Notes Time limit
Within England or Wales 4 months
Rest of the world 6 months
- Act of service of the claim form
○ Must complete the relevant act of service to effect service + serve the Particulars of
Claim before midnight on the calendar day 4 months after the claim form is issued (4
months and before 12 midnight)
▪ Purposes of service
□ To inform the defendant of the nature of the claimants case
□ To assert jurisdiction of the court over the claim
○ Methods of service and steps required
Method of service Step Required
First class post, Posting, leaving with delivering to or
document exchange or collection by the relevant service
other service which provider
provides for delivery on
the next business day
Delivery of the document Delivering to or leaving the document
to or leaving it at the at the relevant place
relevant place
Personal service under Completing the relevant step required
rule 6.5 by rule 6.5 (3)
Electronic method Sending the e-mail or other electronic
transmission
- Particulars of claim
○ The document which sets out the claimant's case in more detail
The person gets a choice of how to serve it, but must either be contained in or served
Civil Lit Page 3
, ○ The person gets a choice of how to serve it, but must either be contained in or served
with the claim form to avoid a time limit
○ If once chooses to serve the PoC on the defendant as a separate document, this must be
done within 14 days of the service of the claim form
○ So within the 4 months period one MUST SERVE Claim form + Particulars of Claim before
12 midnight of the last day.
- Deemed service
○ The second business day after the act of service of the claim form
- Part 8 claim forms (automatically multi track)
○ The other main kind of way to start proceedings
○ Have small differences from Part 7 claims
i. Evidence must be served at the same time as the claim form
ii. A defendant does not need to file a defence
iii. Defendant MUST acknowledge service within 14 days of service of the claim form
iv. The defendant mut also file and serve its written evidence
○ What type of cases uses Part 8
▪ Where the facts are not in contest or in dispute
▪ If a dispute involving a child or protected party settles before proceedings are
initiated, Part 8 can be used to obtain the court's approval for that settlement
▪ May also be issued in advance of an expert determination to decide any disputes
about the interpretation of the expert determination clause
- Extending time for service of the claim form
○ Applications within the 4-month period
▪ The test that the court will apply
□ Main Test: there must be good reason for inability to serve in time
The weaker the reason the more likely the court will be to refuse the
application
□ Overriding objective
The court will also look at
◊ All the circumstances
◊ Pre-action conduct of the parties
□ Limitation
A claimant who only issues the claim form near the end of the
limitation period is not likely to receive a successful application
If there is a good reason for the delay, the court will then balance the
hardship between the parties.
○ Applications after the 4-month period
▪ The court may only make this order if
□ the claimant has failed to serve the claim form OR
□ The claimant has taken all reasonable steps to comply with r7.5 (rules on
service of the claim form) but still has been unable to serve the claim form
▪ Test: the claimant must satisfy the court that it has been prompt in bringing the
application for extension
□ The courts will focus on what steps have been taken and whether they were
reasonable
□ This is a super difficult test to satisfy
- Deemed service of court documents , other than the claim form
○
First Class Post The second day it was posted,
Document Exchange provided it was a business day,
if not, the next business day
after that
Delivering the document to or leaving it at a permitted address If done before 4.30pm, deemed
Civil Lit Page 4
