wait. Welcome to the latest official Civil and Legal insights Podcast. Welcome to Episode three of the first in our litigation podcast theories. My name's Jennifer Miles. I'm a partner in the litigation Speaks team, and I'm Helen Eastwood had a professional support for our litigation and Dispute Management Practise group. This series is aimed at legal advisors or business teams who are not litigators, but I was dealing with claims worth more than £25,000 in their role. In our first episode, we looked at key points you could consider at the outset of dispute with your internal team on in the second how to deal with external communications. In this episode, we're going to focus on the points that you need to consider when formerly sending or receiving what is known as a letter of claim prior to acclaim being issued a court. So with the introductions done, let's start Episode three entitled Letters of Claim on the Pre Action Protocols. Okay, so pre action protocols do what they say on the team they set out for you the protocol that you should follow before you start in action, by which we mean take a claim form down to court and pay the issue fee. The protocols can be found on the Ministry of Justice website on. We will put a link them on our website next to this podcast so that you could view them. There are currently 15 different protocols, depending on the type of claim that you may have. For example, there's a different protocol for professional negligence claims or construction claims or for travel package claims. However, where no specific pre action protocol applies, you still need to be mindful of what weaker too as the practise direction on pre action conduct on protocols. Thiss is a guide to the pre action conduct that the court will expect to parties, and it's not a specific reaction protocol like the others we referred to. But it therefore applies to all types of claims, subject to only a few limited exceptions. So if you had a breach of contract claim, which is along the lines we've been looking at in our previous episodes, you would want to look at the practise direction, reaction, conduct and protocol for some guidance on what you should include in your correspondence. So there are three broad objectives of pre action protocols and their idea is to warn, encourage the early exchange of information between the parties about acclaim to encourage and enable the parties to try and resolve that claim without having to issue proceedings on three where a claim cannot be avoided and it it will be necessary to issue proceedings. Ensure that all the relevant information required to properly plead the claim by which we need set out in writing what it's claimed and why are available so that those pleadings can be done as efficiently as possible on the position of each party is clear. So what will the court have expected off you? In turns of exchanging information with the court will want to see that each party has made an effort to understand the other's position. Aunt has tried to settle the issue without proceedings that it has done its best to resolve the dispute or at least reduce the costs associated with a dispute on DH as far as possible, make the management of any dispute more efficient. A key focus of the practise direction is that the party should act proportionately now what do we mean by proportionately? So if you have a claim on that, say, worth £25,000 at the lower limit is it will be very easy if you decided struck solicitors for the costs off. Arguing about the dispute to rapidly overtake the actual amount in dispute. And the court is very mindful of Thiss on will expect the parties to bear that in mind when they are incurring costs to try and resolve the dispute. So with that in mind, you're not expected in your pre action correspondence to have spent a disproportionate some obtaining certain evidence that might ultimately be required if the matter went to trial. And it's important to bear that in mind if you're being asked for more and more information from a party. Okay, So having identified whether any specific pre action protocol applies to you on reading that through, you now need to think about what to do when you're either drafting a letter of claim by which we mean setting out for the other side what it is. You're complaining about, what you want from them or responding to such a claim, which we call a letter of response. Aunt Helen is going to take us through that now. Thanks, Chen. So yes, just looking at what the pre action protocols require on. As Jen's explained, there are a number of different production protocols for different types of litigation on DH. I'm not going to work through this specific requirements of each pre action protocol, but just talk generally about what they're requiring most cases. But it's worth saying that it's important that you cheque the specific provisions of the relevant protocol before engaging with the other side to understand the particular requirements for your type of claim. Okay, so looking at requirements and they broadly fall into two categories and Jen has touched on this exchange of information on the obligation to consider alternative dispute resolution. Let's look first at the requirement to exchange information. What does that involve? The primary driver behind the protection protocols is, Jenna's explained, is to enable each side to understand each of this position because that then enables the parties to make decisions about how they want to proceed. And in order to understand each other's position, the parties need to exchange sufficient information. Okay, but what does that mean in practise? Well, the pre action protocol requires that way you have decided to bring a claim against another party that you first send the defendant. What we've been referring to is a letter of claim. That letter should set out concise details off the claim, and concise is an important word. The court will expect any letters of claim to be kept shortened to the point, but it needs to include a summary of the relevant facts the basis on which the claim is made. So, for example, where it is a breach of contract claim which term has been breached on what damage has that caused? And finally, you need to set out what you want from the defendant. And if that's money, how the amount has been calculated, she'd also enclose key documents which are relevant to the dispute. So running without breach of contract example a key document. There will be the contract itself. The letter should also say, when you want the other party to respond, and Jen will talk more about deadlines little later in this episode, having sent the letter of claim the perspective, defendant must then provide a full written response on that needs to explain whether they accept or dispute the claim. And if the claim is disputed, that response needs set out. Whether it's the whole claim, we're just part of it. Dis disputed on the reasons why it should also explain was the defendant has a counterclaim, as with the letter of claim. Response should also include in close any key documents which are relevant to the issue so continuing with the example of a breach of contract claim. The defendant may say the terms of that contract have been varied and produce a Siri's of e mails between the parties to demonstrate that, say, the party said agreed that payments into the contract would be delayed until work had been completed. So once the parties have exchanged the letter of claim on the response, they should have a good understanding of the claim and that takes us to the next requirement. The obligation to consider alternative dispute resolution or a TR as it's often referred Teo. We're going to talk Maura about alternative dispute resolution in the final episode of this Siri's. But put simply under the terms of the production protocol, parties are expected to attempt to resolve the matter without having to resort to litigation before the courts. So once the parties understand the dispute, having exchanged information, they must now consider whether they can resolve it. And if proceedings are subsequently issued, it's important to be able to demonstrate to the court you properly considered a DEA on what you did to attempt to resolve the dispute, because the refusal to participate in idea might be considered reasonable and that might have an impact on costs later. Down the line, there are many different forms of 80 are the most common form, which issues protectionist negotiation that could be face to face in a meat, saying it could be over the phone. More, more complex cases. You might consider mediation, arbitration or early neutral evaluation. As I said, we'll look at those options in more detail in episode. Fool on the final point to know is Jen has said all the protection protocols require proportionate steps to be taken, so the courts will expect a lot more to be done in a high value claim than in a low value claim, both in terms of the amount of information that has been exchanged on the attempts of DDR. Okay, so that's the requirements in a nutshell are now passed back to gen to talk about deadlines. Thanks, Helen. So what parties will often find when they receive a letter of claim from the other side is that the party might have demanded a response within what feels like an unreasonably tight deadline on The first thing to do if you receive such a letter with a tight deadline is not to panic. Where there is a relevant pre action protocal, the party should comply with the protocol pickle for commencing proceedings on DH. Each of those protocols will have time periods in them by which the party should respond to correspondence. If there's no relevant pre action protocol, then the timing's will be as followed. So the first step is Kellan has just outlined will be for the claimant to write to the defendant, setting out its claim. It is the defendant. You received that letter. You should have at least 14 days in a straightforward case to provide a response. But if actually the case is a more complex one, particularly if there are issues that you will need to investigate related sometime ago are quite a complicated number of facts that are alleged then you're entitled to up to three months to respond. If, as often happens, a letter of claim has being received by your firm. But for one reason or another, it has taken some time to reach you as the person who will be dealing with it, such that the deadline for a response has either expired or is about to expire. Then the first thing to do is send. What we called a holding response on all that is is a very short letter to the party that has written to you to explain that has just come to your attention, that you are investigating matters set out to in the letter on that you will endeavour to respond by a specified date, and you should include the specified date in the letter. I'm what that specified date will be. Goes back to what we just touched on 14 days is reason love. It's something that's actually very straightforward, but it could be up to three months if it was very complicated. If you can, you should probably try to respond within 28 days to at least keep some dialogue between the party's going on. The reason. It's important to send that holding letter is, it just makes it very unlikely that the other side would go and issue a claim. A court on DH then say Oh, we hadn't heard from you because they will know that response is expected and they should wait for it now A really key point make here is that the practise direction on the other pre action protocols do not change the statutory time limits. Starting court proceedings. We touched on this briefly, an episode warn. But if the claim is issues, so, that means take the claim, form down to the court and pay your fee. After the relevant period limitation period has expired, the defendant will be entitled to use that as a complete defence to the claim. Now, limitation periods are set out in statute on vary depending on the type of claim. But taking the example that we'd be looking at a breach of contract, you would have six years from the date of the breach within which to issue the claim a court. So if you are in a position as a claimant where you are almost up to that six year deadline, then don't wait on engage in the pre action protocol before issuing a Claire in. The most important thing is to make sure that you have protected your claiming. And once the claim is issued, you can then write to the other sides to say you didn't have the opportunities to gauge in the pre action protocol. But you suggest that she put a stay on the litigation proceedings process while you do so Onda Ste is simply the court saying, OK, I'll press the pause button on thiss litigation process whilst the parties try to do something in this case, comply the pre action protocol. And if you wrote to the court setting that out as well as the other side, then it's very likely that the court would agree to just fall was the proceedings. Whilst you get on with the pre action protocol process, but you haven't lost the opportunity spring your claim. As I say, the practise direction on DH pre action protocols merely state what the party should do unless the circumstances make it inappropriate. For example, limitation, that's we've just touched on. Nevertheless, although they're not formal requirements, the court does have the discretion to order sanctions against a party for failing to comply with a pre action practical or the dye practise direction. Aunt Helen's go to take us through what some of these sanctions are. Thanks, Jen. So thinking about those sanctions, then what happens if a claim is so? The protocol? Hasn't bean followed? Is it OK in any circumstances to start proceedings in order to apply, perhaps, and pressure to the other side? Or just because you think you're a really strong case? Well, the short answer to both of those questions is no. The court will expect parties to have followed the protocol before starting proceedings, except in a few specific circumstances which I'll talk through in a moment where a party has failed to follow the protocol. And that might be because the climate has failed to send a letter of claim. Or it might be the defendant who's fell to engage, reply to the letter of claim or engage. A tall with the claim of pre action court has the power to impose sanctions on the parties, and there are lots of options available to the court as to what to do. In those circumstances, it might simply impose a stay, which is Janet, which Jenna's explained simply putting a hold on the proceedings and that allows the parties sometime in order to comply with the pre action protocol. So it's simply delays matters. But the court might also order one party to pay the other side's costs. That might be appropriate, where it's clear the proceedings might be avoided altogether if the protocol had Bean followed or the court might reduce the rate of interest awarded to a successful claimant. So the court will take cases of non compliance very seriously on the sanctions imposed. Any particular case will depend on the circumstances, but the court will be pragmatic. So where one party hasn't followed a minor role within the protocol, But it's followed the spirit and that breach hasn't had an impact on the conduct of the litigation, the court isn't likely to impose a sanction in those circumstances. The court's response to non compliance will also be proportionate. We've already talked about thie requirements within the protocol, and the things that you need to do is being proportionate to the type of claim, and the court will also look at proportionality when it's considering the level of compliance that's necessary and that will depend on things like the size or urgency off the claim. I mentioned earlier that there are some circumstances where a court will not expect the party to have followed a pre action protocol. One is where Europe against limitation, which Jen has already explained. And there are two other situations which it's useful to flag. The first is where the party is seeking an application where telling the other party in advance would completely defeat the purpose ofthe that application. A good example of that is an application for something called a freezing order. Freezing order is a type of injunction. It prevent someone from doing something, and in the case of a freezing injunction, the respondent that's the person against whom the application is made is prevented from disposing or dealing with their own assets. If the respondent was given notice of that application in a letter of claim, they may use the opportunity to dispose of their assets before those assets can be caught by a court order. So in those circumstances, the reasons behind the pre action protocols that's encouraging openness between the parties doesn't apply. You're the situation which is much less common, so I won't spend long on. It is where you think the other party is going to commence proceedings in another jurisdiction and that that would be in breach of an express clause, which you've got in your contract. That says it's the courts of England and Wales that will determine any disputes. We briefly covered jurisdiction clauses in Episode two. The only other thing I would say now is that if you have any concerns that the other party is planning to issue in another jurisdiction and breach of contract, you should seek legal advice as a matter of urgency. Okay, that concludes this episode on pre action protocols on Let us claim We hope that you found that useful tune in next time for the final episode in this Siri's, which will focus on alternative dispute resolution. Now, thanks for listening and goodbye