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(2) Pre-action and starting a claim - Coggle Diagram
(2) Pre-action and starting a claim
Pre-action conduct
C should write to potential D to give details of the claim (Letter of Claim)
Within a reasonable period (depends on complexity of claim), D should send a response letter. Response letter must be either...
Accept the claim
... reject the claim (in whole or in part) - give reasons
The parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement
OR
Where to start proceedings
(7A PD 2.1) - Fleet expects to recover more than £100k
Fleet has a choice of the HC or County Court
YES
YES
Does a specific enactment tell you to issue the claim in the HC or County Court
YES
Issue in County Court
NO
Is the claim a personal injury claim worth less than £50k?
NO
Is the claim a non-PI claim worth £100k or less?
NO
Which court if there is a choice? (7A PD 2.4)
Financial value of the claim is a high £5.1 milliiion
Complex facts, legal issues, procedures, causation and loss
Not really of importance to the public
NO
King's Bench and Chancery Divisions
An example of lists of business that falls to be deal with in each of these divisions:
Chancery division:
Land
Mortgage
Trusts
Administration of estates
Bankruptcy
Partnerships
Probate
Intellectual property
Company matters
Other contract and tort claims
King's Bench division:
Contract claims
Tort claims
Commercial matters
Admiralty (shipping) matters
Judicial review
Defamation claims
personal injury claims
Structure of particulars of claim (key legal points)
Particulars of claim
Beginning
Formal case heading
Introduce each party
Background
Content
Duty
Breach
Causation
Loss
Duty e.g
Tort
:
e.g. skill and care
Hedley Byrne v Heller
Duty e.g.
Contract
:
Express:
Written agreement? - attach contract (16 PD7.3)
Oral agreement? - explain words spoken (16 PD7.4)
Agreement by conduct? - what/who/where/when (16 PD7.5)
Implied:
Using knowledge of the law e.g. providing a service with reasonable care and skill
Breach:
Specify breach(es)
Causation:
As a result of the breach
Loss:
Set out the losses in full
End
Interest
Prayer
Firm/barrister sign-off
Statement of truth
Particulars of claim - interest
Legal basis of claim for interest may be either:
Set out in a
contract
between the parties, or failing that
There is a
statutory right
to interest under S.35A Senior Courts Act 1981 in the HC and S.69 County Courts Act 1984 in the County Court
2 ways of setting out interest claim (CPR 16.4(2)):
Exact calculation
of the amount of interest claimed
C is making a
specified claim
(debt/liquidated damages)
Pleading interest generally
C is pursuing an
unspecified claim
(the court has some decision to make on the amount of damages because the parties do not agree the amount
e.g. damage to reputation, loss of future earnings/profits, and damages where remoteness, foreseeability and/or mitigation is an issue
Example specified claim
C also claims interest pursuant to clause 2.3 of the contract from the due date of the invoice to today's date at the rate of 8% -
(% rate)
Particulars of Interest:
8% of £100k for the period of 1st January [year] to 1 February [year] - (
dates to and from)
inclusive (32 days at the daily rate of £21.92) -
(total to issue)
. Further, C claims interest as above from today's date until judgement or earlier payment at a daily rate of £21.92
(daily rate)
Example unspecified claim
C claims interest on the damages referred to in paragraph 12 above pursuant to S.35A Senior Courts Act 1981 at such rate and for such period as the court thinks fit