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Pre-Action Conduct and Protocols (Before proceedings, the court will have…
Pre-Action Conduct and Protocols
Aim
Enable parties to settle without starting proceedings
Support efficient management by the Court and by the parties of a claim that cannot be avoided
Cases where it should/cannot apply
Applications made by only one party
Applications for pre-action injunctions where secrecy essential
Even where the full procedure is not appropriate, parties should still comply to extent that it is reasonable to do so
Before proceedings, the court will have expected parties to exchanged sufficient information to:
Understand each others position
Make decisions about how to proceed
Try to settle issues without proceedings
Consider a form of ADR to assist settlement
Support the efficient management of those proceedings
Reduce costs of solving the dispute
Disproportionate costs will not be recoverable
Process must not be used as a tactical device to secure an unfair advantage over another party
Where a Pre-Action Protocol applies, the parties should follow that. If no specific protocol should exchange info to comply with objectives.
Compliance will normally involve C writing to D with concise details of the claim. Letter should include:
Basis on which claim is made
Summary of facts
Statement of what C wants from D, and if money how amount calculated
D should respond to C's letter in a reasonable time- 14 days (straight forward) - 3 months (complex)
D should include info whether claim accepted
If claim not accepted, D should give reasons why with explaination of the facts and part of claim disputed and whether D making counterclaim, including details of the counterclaim.
Parties should disclose key docs relevant to issues in dispute to each other
Expert evidence
If necessary, parties should consider using a single joint expert, jointly instructed by the parties with costs shared equally
General rule that court must give permission before expert evidence can be relied upon and the court mat limit the fees recoverable for expert witnesses.
ADR
A party who fails to respond to invitation to ADR/refuses to participate may be considered unreasonable
Non-compliance with pre-action protocol will be taken into account when making case management directions/cost orders
Will consider substance of compliance (not minor/technical infringements where matter urgent)
If there is non-compliance court can order that parties relieved of obligation to comply/further comply or stay proceedings whilst comply
If party at fault C, who has been awarded sum of money- sanction may be order depriving of interest of sum for specified period or lower interest rate
If party at fault D and C awarded sum of money- sanction may be order awarding interest on sum of money for higher rate (not exceeding 10% above base rate)
Order that a party at fault pays the costs of the proceedings, or part of the costs of the other party or parties
Order that party at fault pay those costs on an indemnity basis