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PRACTICE DIRECTION – PROTOCOLS |
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Contents of this Practice Direction |
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1.1 |
This Practice Direction applies to the pre-action
protocols which have been approved by the Head of Civil Justice.
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1.2 |
The pre-action protocols which have been approved are
set out in para 5.1. Other pre-action protocols may subsequently be
added.
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1.3 |
Pre-action protocols outline the steps parties should
take to seek information from and to provide information to each other about a
prospective legal claim.
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1.4 |
The objectives of pre-action protocols are:
(1) |
to encourage the exchange of early and full
information about the prospective legal claim,
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(2) |
to enable parties to avoid litigation by agreeing
a settlement of the claim before the commencement of proceedings,
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(3) |
to support the efficient management of
proceedings where litigation cannot be avoided.
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COMPLIANCE WITH PROTOCOLS
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2.1 |
The Civil Procedure Rules enable the court to take into
account compliance or non-compliance with an applicable protocol when giving
directions for the management of proceedings (see CPR rules 3.1(4) and (5) and
3.9(e)) and when making orders for costs (see CPR rule 44.3(a)).
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2.2 |
The court will expect all parties to have complied in
substance with the terms of an approved protocol.
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2.3 |
If, in the opinion of the court, non-compliance has led
to the commencement of proceedings which might otherwise not have needed to be
commenced, or has led to costs being incurred in the proceedings that might
otherwise not have been incurred, the orders the court may make include:
(1) |
an order that the party at fault pay the costs of
the proceedings, or part of those costs, of the other party or parties;
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(2) |
an order that the party at fault pay those costs
on an indemnity basis;
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(3) |
if the party at fault is a claimant in whose
favour an order for the payment of damages or some specified sum is
subsequently made, an order depriving that party of interest on such sum and in
respect of such period as may be specified, and/or awarding interest at a lower
rate than that at which interest would otherwise have been awarded;
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(4) |
if the party at fault is a defendant and an order
for the payment of damages or some specified sum is subsequently made in favour
of the claimant, an order awarding interest on such sum and in respect of such
period as may be specified at a higher rate, not exceeding 10@AMP@#037; above
base rate (cf. CPR rule 36.21(2), than the rate at which interest would
otherwise have been awarded.
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2.4 |
The court will exercise its powers under paragraphs 2.1
and 2.3 with the object of placing the innocent party in no worse a position
than he would have been in if the protocol had been complied with.
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3.1 |
A claimant may be found to have failed to comply with a
protocol by, for example:
(a) |
not having provided sufficient information to the
defendant, or
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(b) |
not having followed the procedure required by the
protocol to be followed (e.g. not having followed the medical expert
instruction procedure set out in the Personal Injury Protocol).
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3.2 |
A defendant may be found to have failed to comply with
a protocol by, for example:
(a) |
not making a preliminary response to the letter
of claim within the time fixed for that purpose by the relevant protocol (21
days under the Personal Injury Protocol, 14 days under the Clinical Negligence
Protocol),
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(b) |
not making a full response within the time fixed
for that purpose by the relevant protocol (3 months of the letter of claim
under the Clinical Negligence Protocol, 3 months from the date of
acknowledgement of the letter of claim under the Personal Injury
Protocol),
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(c) |
not disclosing documents required to be disclosed
by the relevant protocol.
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3.3 |
The court is likely to treat this practice direction as
indicating the normal, reasonable way of dealing with disputes. If proceedings
are issued and parties have not complied with this practice direction or a
specific protocol, it will be for the court to decide whether sanctions should
be applied.
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3.4 |
The court is not likely to be concerned with minor
infringements of the practice direction or protocols. The court is likely to
look at the effect of non-compliance on the other party when deciding whether
to impose sanctions.
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3.5 |
This practice direction does not alter the statutory
time limits for starting court proceedings. A claimant is required to start
proceedings within those time limits and to adhere to subsequent time limits
required by the rules or ordered by the court. If proceedings are for any
reason started before the parties have followed the procedures in this practice
direction, the parties are encouraged to agree to apply to the court for a stay
of the proceedings while they follow the practice direction.
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PRE-ACTION BEHAVIOUR IN OTHER CASES
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4.1 |
In cases not covered by any approved protocol, the
court will expect the parties, in accordance with the overriding objective and
the matters referred to in CPR 1.1(2)(a), (b) and (c), to act reasonably in
exchanging information and documents relevant to the claim and generally in
trying to avoid the necessity for the start of proceedings.
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4.2 |
Parties to a potential dispute should follow a
reasonable procedure, suitable to their particular circumstances, which is
intended to avoid litigation. The procedure should not be regarded as a prelude
to inevitable litigation. It should normally include –
(a) |
the claimant writing to give details of the
claim;
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(b) |
the defendant acknowledging the claim letter
promptly;
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(c) |
the defendant giving within a reasonable time a
detailed written response; and
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(d) |
the parties conducting genuine and reasonable
negotiations with a view to settling the claim economically and without court
proceedings.
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4.3 |
The claimant's letter should –
(a) |
give sufficient concise details to enable the
recipient to understand and investigate the claim without extensive further
information;
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(b) |
enclose copies of the essential documents which
the claimant relies on;
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(c) |
ask for a prompt acknowledgement of the letter,
followed by a full written response within a reasonable stated period;
(For many claims, a normal reasonable period for
a full response may be one month.)
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(d) |
state whether court proceedings will be issued if
the full response is not received within the stated period;
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(e) |
identify and ask for copies of any essential
documents, not in his possession, which the claimant wishes to see;
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(f) |
state (if this is so) that the claimant wishes to
enter into mediation or another alternative method of dispute resolution;
and
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(g) |
draw attention to the court's powers to impose
sanctions for failure to comply with this practice direction and, if the
recipient is likely to be unrepresented, enclose a copy of this practice
direction.
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4.4 |
The defendant should acknowledge the claimant's letter
in writing within 21 days of receiving it. The acknowledgement should state
when the defendant will give a full written response. If the time for this is
longer than the period stated by the claimant, the defendant should give
reasons why a longer period is needed.
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4.5 |
The defendant's full written response should as
appropriate –
(a) |
accept the claim in whole or in part and make
proposals for settlement; or
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(b) |
state that the claim is not accepted.
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If the claim is accepted in part only, the response
should make clear which part is accepted and which part is not accepted.
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4.6 |
If the defendant does not accept the claim or part of
it, the response should –
(a) |
give detailed reasons why the claim is not
accepted, identifying which of the claimant's contentions are accepted and
which are in dispute;
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(b) |
enclose copies of the essential documents which
the defendant relies on;
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(c) |
enclose copies of documents asked for by the
claimant, or explain why they are not enclosed;
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(d) |
identify and ask for copies of any further
essential documents, not in his possession, which the defendant wishes to see;
and
(The claimant should provide these within a
reasonably short time or explain in writing why he is not doing so.)
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(e) |
state whether the defendant is prepared to enter
into mediation or another alternative method of dispute resolution.
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4.7 |
The parties should consider whether some form of
alternative dispute resolution procedure would be more suitable than
litigation, and if so, endeavour to agree which form to adopt. Both the
Claimant and Defendant may be required by the Court to provide evidence that
alternative means of resolving their dispute were considered. The Courts take
the view that litigation should be a last resort, and that claims should not be
issued prematurely when a settlement is still actively being explored. Parties
are warned that if the protocol is not followed (including this paragraph) then
the Court must have regard to such conduct when determining costs.
It is not practicable in this protocol to address in
detail how the parties might decide which method to adopt to resolve their
particular dispute. However, summarised below are some of the options for
resolving disputes without litigation:
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Discussion and
negotiation.
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Early neutral evaluation by an
independent third party (for example, a lawyer experienced in that field or an
individual experienced in the subject matter of the claim).
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Mediation – a form of
facilitated negotiation assisted by an independent neutral party.
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The Legal Services Commission has published a
booklet on ‘Alternatives to Court’, CLS Direct Information Leaflet
23 (www.clsdirect.org.uk/legalhelp/leaflet23.jsp), which lists a number of
organisations that provide alternative dispute resolution
services.
It is expressly recognised that no party can
or should be forced to mediate or enter into any form of ADR.
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[4.7][If the claim remains in dispute, the parties should promptly engage in appropriate negotiations with a view to settling the dispute and avoiding litigation. The courts increasingly take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still likely. Therefore, the parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS Direct information leaflet 23 (www.clsdirect.org.uk/legalhelp/leaflet23.jsp), which lists a number of organisations that provide alternative dispute resolution services.][The parties may be required by the Court to provide evidence that alternative means of dispute resolution were considered.]
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4.8 |
Documents disclosed by either party in accordance with
this practice direction may not be used for any purpose other than resolving
the dispute, unless the other party agrees.
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4.9 |
The resolution of some claims, but by no means all, may
need help from an expert. If an expert is needed, the parties should wherever
possible and to save expense engage an agreed expert.
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4.10 |
Parties should be aware that, if the matter proceeds
to litigation, the court may not allow the use of an expert's report, and that
the cost of it is not always recoverable.
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INFORMATION ABOUT FUNDING ARRANGEMENTS
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4A.1 |
Where a person enters into a funding arrangement within
the meaning of rule 43.2(1)(k) he should inform other potential parties to the
claim that he has done so.
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4A.2 |
Paragraph 4A.1 applies to all proceedings whether
proceedings to which a pre-action protocol applies or otherwise.
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(Rule 44.3B(1)(c) provides that a party may not recover any
additional liability for any period in the proceedings during which he failed
to provide information about a funding arrangement in accordance with a rule,
practice direction or court order).
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5.1 |
The following table sets out the protocols currently in
force, the date they came into force and their date of publication:
Protocol |
Coming into force |
Publication |
Personal Injury |
26 April 1999 |
January 1999 |
Clinical Negligence |
26 April 1999 |
January 1999 |
Construction and Engineering Disputes |
2 October 2000 |
September 2000 |
Defamation |
2 October 2000 |
September 2000 |
Professional Negligence |
16 July 2001 |
May 2001 |
Judicial Review |
4 March 2002 |
3 December 2001 |
Disease and Illness |
8th December 2003 |
September 2003 |
Housing Disrepair |
8th December 2003 |
September 2003 |
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5.2 |
The court will take compliance or non-compliance with a
relevant protocol into account where the claim was started after the coming
into force of that protocol but will not do so where the claim was started
before that date.
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5.3 |
Parties in a claim started after a relevant protocol
came into force, who have, by work done before that date, achieved the
objectives sought to be achieved by certain requirements of that protocol, need
not take any further steps to comply with those requirements. They will not be
considered to have not complied with the protocol for the purposes of
paragraphs 2 and 3.
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5.4 |
Parties in a claim started after a relevant protocol
came into force, who have not been able to comply with any particular
requirements of that protocol because the period of time between the
publication date and the date of coming into force was too short, will not be
considered to have not complied with the protocol for the purposes of
paragraphs 2 and 3.
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