Civil Litigation Revision Doc
Pre-action protocols
Aims
- Practice Direction – Pre-Action Conduct and Protocols (PD PACP) para 3:
o Early contact, discussions, exchanges of info
o Full pre-action investigation of claim
o Parties to resolve claim early and fairly by negotiation/ADR without litigation
- Para 8: litigation should be last resort
Claims v professionals
- Professional Negligence Pre-Action Protocol
- Use this if v professional
Failure to comply
- Costs consequences
o Para 13 PD PACP
court considers substantial non-compliance when giving directions
and making orders for costs
o Para 16
Potential sanctions
- Costs
o Advise client that they won’t recover full amount of costs, even if they win
Client will pay shortfall
o General rule – CPR 44.2(2)(a) – unsuccessful party pays successful party’s
costs
o Court discretion:
CPR 44.2(1) – who pays how much and when
CPR 44.2(4) – factors court consider when deciding how much
CPR 44.2(5)(a) – failure to comply with pre-action protocol is a
consideration
High court v County Court jurisdiction
- 7A PD – starting proceedings + claim form
- 7A PD 2.1 – claims +£100,000, CC and HC have concurrent jurisdiction
o CPR 16.3(6) – interest/costs/counterclaim not factored into this value
- 7A PD 2.4 – where there is a choice, consider these factors
Three considerations
1
, - Jurisdiction
o 7A PD 2.4 – Very high value/highly complex/important to public – should be
High Court
- Rules governing commencement – CPR 7, PD 7A
o 7A PD 2.1 – If £100,000 or less – County Court
o 7A PD 2.1 – If above £100,000 – either HC or CC
o 7A PD 2.2 – figure is £50,000 for personal injury claim
o CPR 16.3(5) – if claim issued by HC, C must expect to recover more than
£100,000
o 29 PD 2.6 – defamation/JR/others heard in HC regardless of value
- Rules governing transfer – CPR 30
o 29 PD 2.2 – claim under £100,000 issued in HC will be transferred to CC
o CPR 30.3(2) – criteria for transfer between HC and CC
Similar as above – value, complexity, importance to public etc.
- Bringing case in wrong court = costs sanctions
- HC divisions:
o Queen’s Bench – contract tort – where all drafted forms will be
Instruction and PCR
- CCS 6.1 and 6.2 – conflict of interest check
- CCS 3.1 and CCS 8 – information you have to make clear to the client at the outset
o CCS 8 stuff is often put in client care letter
Costs info
Fees info
Complaints procedures
- CCS 1.4 – don’t mislead court
2
,3
, 4
Pre-action protocols
Aims
- Practice Direction – Pre-Action Conduct and Protocols (PD PACP) para 3:
o Early contact, discussions, exchanges of info
o Full pre-action investigation of claim
o Parties to resolve claim early and fairly by negotiation/ADR without litigation
- Para 8: litigation should be last resort
Claims v professionals
- Professional Negligence Pre-Action Protocol
- Use this if v professional
Failure to comply
- Costs consequences
o Para 13 PD PACP
court considers substantial non-compliance when giving directions
and making orders for costs
o Para 16
Potential sanctions
- Costs
o Advise client that they won’t recover full amount of costs, even if they win
Client will pay shortfall
o General rule – CPR 44.2(2)(a) – unsuccessful party pays successful party’s
costs
o Court discretion:
CPR 44.2(1) – who pays how much and when
CPR 44.2(4) – factors court consider when deciding how much
CPR 44.2(5)(a) – failure to comply with pre-action protocol is a
consideration
High court v County Court jurisdiction
- 7A PD – starting proceedings + claim form
- 7A PD 2.1 – claims +£100,000, CC and HC have concurrent jurisdiction
o CPR 16.3(6) – interest/costs/counterclaim not factored into this value
- 7A PD 2.4 – where there is a choice, consider these factors
Three considerations
1
, - Jurisdiction
o 7A PD 2.4 – Very high value/highly complex/important to public – should be
High Court
- Rules governing commencement – CPR 7, PD 7A
o 7A PD 2.1 – If £100,000 or less – County Court
o 7A PD 2.1 – If above £100,000 – either HC or CC
o 7A PD 2.2 – figure is £50,000 for personal injury claim
o CPR 16.3(5) – if claim issued by HC, C must expect to recover more than
£100,000
o 29 PD 2.6 – defamation/JR/others heard in HC regardless of value
- Rules governing transfer – CPR 30
o 29 PD 2.2 – claim under £100,000 issued in HC will be transferred to CC
o CPR 30.3(2) – criteria for transfer between HC and CC
Similar as above – value, complexity, importance to public etc.
- Bringing case in wrong court = costs sanctions
- HC divisions:
o Queen’s Bench – contract tort – where all drafted forms will be
Instruction and PCR
- CCS 6.1 and 6.2 – conflict of interest check
- CCS 3.1 and CCS 8 – information you have to make clear to the client at the outset
o CCS 8 stuff is often put in client care letter
Costs info
Fees info
Complaints procedures
- CCS 1.4 – don’t mislead court
2
,3
, 4
