The Practice Directon for Pre-Action Conduct

If you want to pursue a civil claim then, as you will be aware, there are certain formalities you need to comply with.

Depending on the basis of your client’s claim, you will need to follow a set approach. These are outlined here -> http://www.justice.gov.uk/courts/procedure-rules/civil/protocol

If you deal with standard negligence, nuisance and breach of contract (or normal statutory duties, particularly those relating to property and consumer products) you will be using the practice direction for pre-action conduct (http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct). This is a straightforward practice direction.

In short, it’s:

  • Letter of claim
  • Acknowledgment
  • Full or substantive response
  • Disclosure
  • A period of time for taking stock; i.e. “is it worth it?”
  • (Settle, issue or abandon the claim) – this one is not in the practice direction, but it’s pretty much implied!

The difficulty that many insurance companies and adjusters have is distinguishing between the time frames. The “jack of all trades” types who handle PI always seem to want to have a 90-day period for a full response. The practice directions provides for 30 days, which is the standard timeframe and only allows 90 days in “exceptional” cases.

An acknowledgment to the letter of claim is due within 14 days and the full response needs to be served within 30 days, particularly if insurers are involved.

What’s the problem?

You are at the mercy of insurers and adjusters if they refuse to:

1. outline their position on liability within 30 days and/or

2. refuse to provide disclosure voluntarily.

The options available to you are issuing proceedings due to a breach of the practice direction or making an application for pre-action disclosure.

Well just crack on and do it…

Hmmmm, risky options. Making a PAD is commonplace and we frequently do this. You can get £400-700 for this generally, and the worst case scenario is no order as to costs. Paying a respondent’s costs is rare if they have breached a practice direction or pre-action protocol. These are not figures that get notices by insurers.

Issuing is trickier. There is a genuine exposure to costs and counsel rarely signs up to a CFA funding arrangement without knowing a defendant’s position.

Does that not make you at the mercy of insurers?

Bingo!! We have a winner.

There is a reasonable chance that if you issue and later discontinue proceedings at the early stages [based on a response/disclosure from the defendant] then you may be able to refuse to pay their costs and seek a contribution towards your own.

However this is not guaranteed and comes down to how intransigent the defendant wants to be.

If there was guidance that allowed a claimant to recover costs due to major defaults by insurers then it would assist in forcing their compliance. It may be that they recruit more staff, or better staff, or even both!

Until we start getting insurance companies’ attention, which is only possible by taking their money, it will not change. If this is not possible then the current situation of “we are still investigating the claim” will continue, or even the scumbag tactic of being advised “we have just instructed [loss adjuster] and they are handling the claim so we would request you to refrain from issuing as it is being dealt with”.

Can’t the insurers sort it out by recruiting better staff?

They could, but nobody wants to work for them. We can make more money suing them. The insurers will always need to outsource and have panel companies as they cannot handle the work in-house. Therefore, the saga continues (eat, sleep, PAD, issue, repeat).

Over and out.

Legal Orange.

 

 

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2 thoughts on “The Practice Directon for Pre-Action Conduct

  1. Pingback: CIVIL PROCEDURE, COSTS & SANCTIONS: LINKS TO RECENT ARTICLES AND POSTS | Civil Litigation Brief

  2. Pingback: PRE-ACTION CONDUCT: ESSENTIAL CHECKLISTS AND USEFUL LINKS | Civil Litigation Brief

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