#19718 - 3. Bpc Civil Litigation 2023 2024 Pre Action Conduct And Adr - BPC Civil Litigation

Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims.

The main aims are: proportionality, saving costs and efficient progress of litigation.

This particular Practice Direction applies to disputes where no pre-action protocol applies.

Before commencing parties, the court will expect parties to have exchanged sufficient information to:

• Understand each other’s position

• Makes decisions about how to proceed

• Try to settle the issues without proceedings

• Consider ADR

• Support the efficient management of those proceedings, and

• Reduce the costs of resolving the dispute.

Parties should comply with pre-action protocols before commencing proceedings, steps will usually include:

• C writing to D with concise details of the claim (facts, nature of claim and remedy sought)

• D responding in 14 days in a straightforward claim, no more than 3 months in a complex one.

• The parties disclosing key documents.

The Court must be aware before expert evidence is used - parties should consider using a single joint expert when it is necessary.

Parties are expected to make appropriate attempts to resolve the matter without recourse to litigation and consider the use of ADR. The court may require evidence that the parties considered some form of ADR.

Designed for fast track personal injury claims (up to 25,000); can also be used in other claims (e.g property damage) where this part of a personal injury claim.

Applies to litigants-in-person.

The Protocol can be varied by the parties, but the Court will require an explanation.

If the Protocol has not been complied with, the Court may impose sanctions: they will consider whether the parties have complied in substance to the relevant requirements and principles.

The timeline starts when the letter of claim is issued (the sender can change their position after it is sent as long as it is justified).

The Protocol recommends:

• D be given three months to investigate and respond to a claim before proceedings are issued.

The Protocol requires:

• C should notify D before a detailed letter of claim is sent.

• Two copies should be sent including a summary of the facts.

• D must reply within 21 calendar days.

  • If there has been no response, C is entitled to issue proceedings.

  • Any admission in the letter or reply may be binding on that party in litigation.

• Where there is no whiplash injury:

  • Obtain a medical report and disclose to D.

• Where there is a whiplash injury:

  • C must obtain a fixed cost medical report from MedCo.

• C to sent medical reports, schedule of expenses and losses to D.

• Parties to consider the evidence and arguments 7-14 days before the intended issue date to ‘stocktake.’

Experts:

• Within 14 days of producing a list of experts, the other party may indicate an objection. If the defendant objects to them all, the parties may choose their own experts. Experts should send answers to the questions simultaneously to each party.

• C will need permission to rely upon an expert’s report in their proceedings

If D admits liability, C will send to D as soon as reasonably practicable a schedule of past and future losses which C claims.

Court may ask a party to explain any failure to comply with a Practice Direction and require evidence.

The Court expects compliance with the substance, if not the letter of the Practice Direction and the Protocols. Minor lapses will be ignored. Consideration will also be given to proportionality – what level of compliance is required given the size and nature of the claim – and the urgency of the matter.

Silence in face of ADR is unreasonable, regardless of whether there was a good reason for the refusal to engage with ADR.

Genuine justifications for failure to...