#13780 - Overriding Objective And Protocols 5 - BPC Civil Litigation

The Overriding Objective

What is the “Overriding Objective”?

• To deal with cases “justly and at a proportionate cost”.

• This means:

  • Equal Footing

  • Saving Expense

  • Dealing with the case proportionate to:

    • Amount of money involved;

    • Importance of the case;

    • Complexity of the Issues;

    • Financial Position of Each Party;

  • Ensuring case dealt with expeditiously and fairly;

  • An appropriate share of court’s resources;

  • Enforcing compliance with CPR, practice directions, Orders.

Where does the Overriding Objective apply?

• County Court;

• High Court;

• Civil Division of the Court of Appeal

• EXCLUDING:

  • Insolvency;

  • Non-contentious or common form probate;

  • HC acting as prize court;

  • Court of Protection;

  • Family Proceedings;

  • Adoption Proceedings;

  • Election Petitions in HC;

Enforcement of the Overriding Objective

• The Court

  • The court must give effect to OO when exercising any power, or interpreting any rule.

  • It must actively manage cases, including to:

    • Encouraging cooperation;

    • Identifying Issues at early stage;

    • Deciding Promptly which issues can be disposed of summarily, and which need trial;

    • Deciding order of issues to be resolved;

    • Encouraging parties to use ADR;

    • Helping parties settle in whole or part;

    • Fixing Timetables to control progress;

    • Weighing benefits/costs of decisions;

    • Dealing with as many parts of the case in one sitting;

    • Dealing with the case without parties needing to attend court;

    • Using Technology;

    • Giving directions so trial proceeds quickly and efficiently;

• The Parties

  • The parties are required to assist the court in furthering the OO.

The Pre-Action Protocols

Compliance

• When giving directions, the Court will consider compliance with the Pre-Action Conduct Practice Direction and any relevant pre-action Protocol.

• The Court may order payment of money into court if failed to comply with this PD.

Pre-Action Conduct Practice Direction

• This Protocol applies where no other specific protocol applies, and excludes debt claims.

• The courts will expect parties to comply with this, and any pre-action Protocol.

  1. Aim: Before proceedings start, the parties should:

     • Exchange sufficient information to sufficiently understand the other’s position;

     • Make appropriate attempts to resolve the matter without starting proceedings

• Procedure (Annex A)

  1. C's Letter before Claim

     1. The claimant should send a Letter of Claim to the defendant.

  2. D’s Acknowledgement of Receipt

     • If D doesn't respond within 14 days, D must acknowledge receipt within 14 days, stating:

     • Where D is unable to respond within 14 days of receipt of the letter, D should acknowledge within 14 days. He should state:

       • Whether an insurer is involved;

       • Latest Date by which D (or insurer) will give full written response;

       • May request further information for a full written response;

       • If seeking legal advice, that he is doing so, from whom he is seeking it, and when he will have received that advice, and can respond. A reasonable time of upto 14 days will be allowed.

     • If D doesn’t reply within 14 days, and C initiates proceedings, the court will likely consider C has complied.

  3. D’s Full Written Response

     • The response should be within a reasonable period:

       • Simple Matter: Within 14 days

       • 3rd Party or Insurer Involved: Within 30 days

       • Complex Matter Requiring Specialist Advice: More than 30 days

       • Exceptional Circumstances: More than 90 days

     • D’s full written response should:

       • Accept the claim in whole/part, and if part, with reasons; or

       • State what part of the claim is not accepted.

       • Mention any counterclaim, contributory negligence

       • Whether amenable to C's suggestion of ADR (if not, suggest alternative)

       • Disclose Docs on which D relies, any any requested by D;

       • Identify and Request any further disclosure.

  4. C’s Reply

     • Provide docs requested ASAP, or reasons in writing why docs are not provided.

     • If D initiates counterclaim, do an equivalent response as to D's response.

  5. Taking Stock

     • The parties now are in a position to resolve the matter. At very least, resolve issues outstanding so as to narrow the scope of the proceedings, and therefore limit potential costs.

     • If not resolve, take further stock - can be resolved?

The Personal Injury (Pre-Action) Protocol

• Applies to fast-track cases up to 15,000.

• The spirit, if not the letter of the protocol, should still be followed for other claims - r2.4.

• The Court should not be concerned with minor infringements.

• Procedure

  1. Advanced Warning

     • C’s legal representative may wish to notify D (and/or D’s insurers) as soon as possible when C knows claim will be made, but before ready to send detailed letter of claim.

  1. C’s Letter of Claim

     • Use specimen letter of claim in Annex A.

     • Send two copies of Letter of Claim (one for D, one for insurer) to individual D.

     • This letter must be passed to the insurer, if D is insured.

     • Needs to include:

       • Clear summary of facts;

       • Nature of injuries;

       • Schedule of Past and Future Expenditure;

       • Request Details of Insurer;

       • Notification of Conditional Fee Arrangements (if applicable)

       • Hospital name and address, and reference numbers; (RTA)

       • Ask for details of insurer, also send C’s NI and date of birth (once D’s insurer has responded to Letter of Claim), and sufficient information to substantiate the claim as at least “risk”.

  2. D’s Response

     • D must reply within 21 calendar days of date of posting (r3.6). If no reply, C is entitled to issue proceedings.

     • Needs to include:

       • Details of any insurers;

       • Significant omissions from the letter of claim.

     • D’s insurer has a maximum of 3 months from the date of acknowledgment of claim to investigate.

     • If accident is outside the jurisdiction, or where D is outside the jurisdiction, 21 days, and 3 months, should be extended to 42 days, and 6 months respectively.

     • If D denies liability, he should enclose with his reply documents in his possession which are material to the issues between the parties.

     • In Annex B there are specimen documents for transfer:

       • RTA

         • Docs identifying nature, extent, damage to D’s vehicle;

         • MOT certificate if relevant;

         • Maintenance Records where vehicle defect is alleged’;

         • Tachograph charts if commercial vehicle.

         • If against Local Authority for highway design defect, documents produced to comply with s39 RTA 1988 of duty to promote road safety re studies into road accidents in relevant area.

       • Highway Tripping Claims

         • Documents from Highway Authority 12m preceding accident:

         • Records of inspection of relevant stretch of highway;

         • Maintenance records;

         • Records of Highway Authority meetings, whether repair policy discussed etc;

         • Records of complaints of highways

         • Records of other similar accidents on that highway;

       • Work Place Claims

         1. C needs to send schedule of special damages.

         2. Early disclosure

            • Accident Book Entry;

            • First Aider Report;

            • Surgery Record;

            • Foreman/Supervisor Accident Report;

            • Safety Representatives Accident Report

            • Communications between D and HSE;

            • Health & Safety Mtg Minutes where accident raised;

            • Report to DDS

            • Documents relative top previous accident matter identified by C and relied upon as proof of negligence;

            • Earnings information where D is employer;

            • Pre and Post Accident Risk Assessments;

            • Accident Investigation Report

            • Health Surveillance Records

            • Regulation 8 Information

            • Documents relating to employee’s H&S training;

            • NUMEROUS SPECIFIC DOCUMENTS ARE LISTED...!

  3. Joint selection of Experts

     • Send early list of experts to other side for their approval.

     • Can object within 14 days to one or more named experts.

     • The first party may then instruct mutually acceptable expert.

     • If object to all, parties may only then nominate experts of their own choice.

  4. Consideration

     • Any medical reports obtained before proceedings should be disclosed to the other party.

     • C should delay initiating proceedings for 21 days from disclosure of the report unless that would mean him becoming time-barred, for D to consider settlement.

     • Parties should always consider before issuing if it isPt36 Offer.

  5. ADR more appropriate?

     • The parties should consider whether ADR is more suitable than litigation.