Unit 3 - PAC & ADR Reading PDF

To prepare for this unit, please read: 1. Paragraphs 2.30-2.61; 3.04-3.11, 3.14-3.16, 3.24-3.34; 4.02-4.03, 4.07-4.08; 9.05, 9.20, 9.22-9.25, 11.07-11.23, 11.34-11.37, 11.59-11.61, and 11.63-11.64 of The Jackson ADR Handbook (Third Edition, 2021). 2. The commentary at paragraphs 14-1...

To prepare for this unit, please read: 1. Paragraphs 2.30-2.61; 3.04-3.11, 3.14-3.16, 3.24-3.34; 4.02-4.03, 4.07-4.08; 9.05, 9.20, 9.22-9.25, 11.07-11.23, 11.34-11.37, 11.59-11.61, and 11.63-11.64 of The Jackson ADR Handbook (Third Edition, 2021). 2. The commentary at paragraphs 14-1 (first sub-paragraph ending "... on the power articulated by the Court of Appeal.") and 14-11 of Volume 2 of the White Book Volume 2. 3. The following specific leading case authorities (which you should be able to refer to by name): *Halsey* and *Churchill* 4. Civil Procedure Rules and/or Practice Directions: Practice Direction (Pre-Action Conduct and Protocols) paragraphs 1-17. (The White Book) \[1,7, 8-1112 to 17\] 5. The commentary on the Practice Direction (Pre-Action Conduct and Protocols) at paragraphs C1A-005 to C1A-007 of Volume 1 of the White Book. 6. The wording of the Practice Direction for Personal Injury Claims at paragraphs C2-001 to C2-016 of Volume 1 of the White Book. 7. The commentary on the Practice Direction for Personal Injury Claims at paragraphs C2-001.1 and C2-012.1 of Volume 1 of the White Book. 8. Paragraphs 8.03, 8.23, 8.24-8.25, 11.05-11.06 and 11.60 of The Jackson ADR Handbook (Third Edition). 1. Paragraphs 2.30-2.61; 3.04-3.11, 3.14-3.16, 3.24-3.34; 4.02-4.03, 4.07-4.08; 9.05, 9.20, 9.22-9.25, 11.07-11.23, 11.34-11.37, 11.59-11.61, and 11.63-11.64 of The Jackson ADR Handbook (Third Edition, 2021). **[Motivations for the Use of ADR]** 1. Lower costs a. the earlier ADR employed the greater the costs saved 2. Speed of settlement b. non-adjudicative ADR or expert determination can take place very quickly after disputes arise c. less potential time advantage using arbitration usually 3. Choice of forum d. often wide choice in selecting an arbitrator, mediator, or independent evaluator 4. control of process e. ADR process is subject to contractual agreement, and while many ADR providers use standard processes, the parties can agree process options suiting their needs 5. Flexibility of process f. set stages of litigation can be inflexible g. ADR can also address key concerns that are not directly related to strict legal rights 6. Confidentiality h. a party may prefer a more private process 7. A wider range of issues/outcomes may be considered i. litigation focusses on issues defined by statements of case j. ADR can address more, in particular in non-adjudicative process they can agree any terms they wish, even going outside their area of dispute 8. Shared future interests may be protected k. may be more effective process in preserving a relationship 9. Use of a problem-solving approach l. litigation is adversarial - it can deepen rifts m. ADR can be more constructive 10. Risk management n. a case with 51% chance of success may proceed to litigation but there are of course significant risk of loss o. this risk could be managed by incurring additional expenditure in hope of strengthening the case, but risk may be more directly and cost effectively controlled through constructive and proactive use of ADR. **[Criteria for selection of an ADR option ]** 1. **How important is it to minimise costs?** In a higher value case, negotiation, mediation, early neutral evaluation, or expert determination can be very cost-effective. 2. **How important is fast resolution?** If quick resolution is important, a non-adjudicative option such as negotiation or mediation may be most effective. 3. **How much control does the party want?** A party can potentially have substantial control over ADR process as ADR is based on an agreement. More the case in non-adjudicative. 4. **What are the main objectives of the party?** if main objective is to decide sum of compensation, ADR process may be appropriate; any ADR will be appropriate. For non-pecuniary matters a non-adjudicative ADR such as mediation may be better given the degree of discussion between parties. 5. **Is a future relationship important?** Eg. commercial or family dispute relationship - non-adjudicative most likely to produce successful outcome. Litigation can significantly undermine a relationship. 6. **Is the view of an expert important to key issues?** Where it is important to one or more of the main issues, early neutral evaluation or expert determination should be considered. 7. **Would neutral assistance be valuable?** Parties in adversarial process can become entrenched or focussed on 'winning' and unable to compromise. Mediation could help parties see the strengths and weaknesses of a case more objectively. **[When AD may not be appropriate]** A party may be able to show it was not unreasonable to refuse mediation if it would have wasted time and money and was unlikely to succeed, but in many cases the court is more likely to see ADR as potentially useful and cost effective. A. **The need for a precedent** Only a court judgment can provide legal precedent eg. if a case concerns interpretation of a clause in a standard form contract. Strong debate amongst practitioners and academics concerning the public interest in ensuring enough cases proceed to trial to develop law through precedents. B. **The importance of a court order** eg. a declaration of legal rights or a technical order can only be done by court order. C. **The relevance of interim orders** Power of court to make eg. interim injunctions may be important in a case. However, ADR could then be used once interim orders have been made. D. **Evidential rules are important** Rules re disclosure and exchange of WS may be particular important in cases where one party is not forthcoming in producing relevant information. A judge may be prepared to order pre-action disclosure or specific disclosure to support use of ADR. E. **The strength of a case** Client with a strong case may fear that agreeing to an ADR process may show weakness or necessitate making concessions. Swain Mason v Mills & Reave \[2012\] states a party with a strong case may not act unreasonably in refusing ADR. Really if a party feels the case is very strong then the most appropriate course of action may be to apply for summary judgment. F. **The complexity of the case** Complex facts may be appropriately considered in court, especially if cross-examination may be important. G. **High levels of animosity** High levels of animosity might suggest a process based on agreement may not work. However, the introduction of robust impartiality in the form of a skilled mediator or a robust neutral evaluation by an expert may assist in reaching a conclusion. H. **Power imbalance** If one party has substantially more resources than the other, or improper control eg. through domestic violence, a non-adjudicative ADR process may not be appropriate. I. **Quasi-criminal allegations** Cases eg. fraud or libel, here non-adjudicative ADR may not be suitable. If cross-ex is key, and/or judicial determination of serious allegation is required then litigation may be necessary. J. **Having a day in court** The desire for vindication or having rights determined by a court might be a reason ADR is refused, however this needs to be placed within the context of potential costs and chance of success. K. **Enforcement may be an issue** Non-adjudicative ADR often results in a settlement in contractual form, rarely an issue when terms are clear and agreed. Adjudicative ADR may lead to enforcement difficulties if party not content with decision given, through there is a provision for the enforcement of arbitral awards. **[TIMING THE USE OF ADR IN RELATION TO THE PROGRESS OF A CASE]** 3.04-3.11, 3.14-3.16, 3.24-3.34 **[Procedural factors relevant to timing]** *[Pre-selection of ADR]* An advance commitment in a contract may provide for the timing of ADR. - A clause may set out a particular ADR method to be used, a body or person to be approached to resolve any dispute - A clause may specify steps aimed at resolution to be taken before litigation can be commenced Potential advantages of pre-selecting ADR timing and steps are: - easier to make an agreement to deal with a dispute constructively when a contract is made, rather than when a dispute has already arisen - provide more control as regards appropriate, cost-effective, and timely resolution as timescale can be prescribed - specific body or person can be identified in advance to conduct ADR - ensure confidentiality should any dispute arise - easier to maintain a constructive approach to a dispute rather than risk dispute escalation *[The use of ADR at the pre-action stage]* If no pre-agreement, the advantages of actively considering ADR at early stages are: - best opportunity to save time and costs - some non-A ADR eg. neutral evaluation is by its nature most effective if incorporated into a case reasonably quickly - ADR may assist in clarifying issues even if it does not lead to final settlement Potential drawbacks of using ADR too early are: - time and money may be wasted if ADR process unsuccessful - unsuccessful ADR process may exacerbate dispute - may be difficult to evaluate the case properly - may be used tactically rather than genuine attempt to settle *[On issue of proceedings]* Pre-action requirements include a general needs to review the position on ADR before issuing proceedings. *[Case and costs management and directions ]* Case management powers are directed to support use of ADR. EG. Directs Questionnaire (Small Claims Track) includes guidance on trying to settle a case and the Small Claims Mediation Service. The Directions Questionnaire (Fast and Multi track) make it clear the court will want to know what steps have been taken in relation to settling a case. [The use of ADR at an interim stage ] There are various ways in which interim orders can be used to support the use of ADR, on the application of a party or on the initiative of the judge: - court may order that a party attend court - on application for an interim order the court may give directions to support the use of ADR - court can order trial of a preliminary issue if rest of case might then be settled - several models for interim orders to support the use of ADR have been developed, providing, for example, for a party to provide a WS explaining why ADR is not considered to be appropriate **[PRACTICAL FACTORS RELEVANT TO TIMING]** [The overriding objective ] Deciding how a case can be dealt with justly and proportionately, expeditiously ad fairly - all relate to potential use of ADR as well as to the progress of litigation. [The position as regards costs ] Potential concerns about escalation of costs in litigation is a major driver for the use ADR. [The timeframe for reaching resolution ] Swift resolution is another major driver. Judge and parties may compare the steps needed and the likely time frame for reaching resolution through litigation vs ADR. [The issues in the case ] Issues need to be clear before dispute can be properly resolved. Once statements of case are in place the issues should be sufficiently clear for ADR to be used; if not steps can be taken to clarify the issues for ADR. [The availability of information ] Sufficient info needed for case to be sufficiently evaluated before a dispute can be properly resolved. As long as reasonably reliable, such info doesn't need to be in the form of formal evidence for the purposes of ADR. [The availability and importance of evidence] In non-adjudicative ADR it is not essential to prove a case, this is a way expenses can be saved. Where issues strongly contested and/or low levels of trust between parties, it may be necessary to wait until exchange of evidence is complete to attempt ADR. Adjudicative ADR will require that appropriate evidence be made available to the decision-taker. [The importance of interim applications ] Proceeding with litigation may be justified where applications for interim orders may be important to the case. ADR may be undertaken once interim order sought. [The strength of the case] [Antagonism between the parties ] If antagonism manifests itself in difficulties relating to evidence and interim applications, making the case difficult to assess, then trial may be necessary. 4.02-4.03, 4.07-4.08; **[Duties under the Civil Procedure Rules]** Lawyers and parties required to assist the court in furthering the overriding objective - CPRr1.3. There is a positive duty to assist the court in saving expense, ensuring case dealt with expeditiously and fairly and in a way proportionate to the issues, importance of the case, amount of money involved, and the financial position of each party - CPRr1.1. As regards budgeting, the Guidance Notes on Precedent H make it clear that estimated costs for ADR should cover settlement negotiations, including Part 36 and other offers, and advising the client, as well as drafting a settlement agreement or Tomlin order. **[The Role of a lawyer in advising on ADR]** - As part of giving advice at key stages as litigation progresses, ensuring client is sufficiently aware of ADR alternatives - providing information on benefits and drawbacks of ADR - advising on pre-action obligations - ensuring client aware of penalties that may result from unreasonable refusal to use ADR - giving appropriate advice on funding and costs in relation to ADR - if ADR selected, clear instruction on form of ADR to be used, objectives to be achieved etc - if appropriate, assisting in the selection of an independent third party to conduct an ADR process - advising on strengths and weaknesses of a case as part of assessing a case for use of non-adjudicative ADR - considering and advising on offers in relation to non-A ADR - advising and drafting terms of settlement [Authority to settle ] A lawyer negotiating on a client's behalf should only reach a final agreement if so authorised by the client. Any limit on authority should not be exceeded. If a lawyer reaches an agreement and did not have the authority to settle - the agreement could still be enforced against the client, who could then bring a claim against the lawyer for acting without authority. 9.05, 9.20, 9.22-9.25, [Judicial encouragement of ADR] Judges are prepared to question parties as to steps taken to attempt settlement and avoid litigation, and will robustly encourage them to cooperate in the use of ADR eg (Dyson v Leeds CC \[2000\], Brookfield construction Ltd v Mott Macdonald Ltd \[2010\]. There is a duty on parties to engage in ADR whenever that offers a reasonable prospect of producing a just settlement at a proportionate cost, and they should do this without the need for the court's intervention, because it is a waste of court resources to have to manage parties towards ADR. (PGF II SA v OMFS Company \[2013\]) Parties are obliged to behave reasonably and make reasonable offers to settle and respond properly to Part 36 offers made by the other side. There is a continuing duty of the parties to consider ADR throughout litigation (Garritt-Critchley v Ronnan \[2014\]). [Case Management Powers and ADR] Court can direct parties to consider ADR at a case management conference or pre-trial review. The court of appeal approved the use of such an Order in ***Halsey*** \[2004\] describing the Commercial Court Order as the strongest form of encouragement but falling short of compulsion. [Directions Questionnaires and ADR] Before case allocated to a track, court will require the parties to file and serve a directions questionnaire in Form N181 (fast track and multi) or N180 (small claims track). The form requires legal reps of a party to confirm they have explained to their client the need to settle the claim, options available for settlement, and the possibility of costs sanction if they refuse to settle. Form requires each party to inform court whether they would like to stay for 1 month and try settle, or to explain why it is not possible to settle at this stage. Parties also asked whether they have complied with relevant pre-action protocol, and if not, to explain why not. [Granting stays for ADR] Court has power to make orders staying the whole or any part of proceedings until specified date or event - CPR r3.1(2)(f) and r26.4. As stay suspends or halts the proceedings and so avoids the need for a party to prepare for the ADR process and the various stages of the litigation process at the same time, thus saving time and expense. When a stay is lifted or it expires, the position as between the parties is the same as it was at the moment the stay was imposed and the action resumes from the point it had reached at the time the stay was imposed. Stay = 1 month but court has power to extend and often does. Any extension over 4 weeks will be accompanied by clear reasons to justify a longer time (PD 26 para 3.1(2)(b)). If stay granted for ADR to be attempted, the parties must keep the court informed about the outcome of the ADR process. If it results in settlement, the parties will need to formally dispose of the court proceedings, perhaps by way of Consent Order or a Tomlin Order. 11.07-11.23, 11.34-11.37, 11.59-11.61, and 11.63-11.64 \*\*\*\*\*\*\*\*\*\*\*\*\* \*\*\*\* \^\^\^\^ 2. The commentary at paragraphs 14-1 (first sub-paragraph ending "... on the power articulated by the Court of Appeal.") and 14-11 of Volume 2 of the White Book Volume 2. [Introduction to ADR and its promotion ] The Court of Appeal in *Churchill v Merthyr Tydfil CBC \[2023\]* overturned *Halsey v Milton Keynes General NHS Trust \[2004\],* leading case on ADR. CoApp held the court could lawfully stay proceedings for, or order, parties to engage in ADR... - Provided order did not impair the very essence of the C's right to proceed to a judicial hearing - and was proportionate to achieving the legitimate aim of settling dispute fairly, quickly, and reasonable cost. Note, Churchill is not authority for the court having a power to mandate a binding ADR process. [The power of the court to order ADR - Churchill ] CoAPP made clear the court can in fact order what he described as non-court-based dispute resolution. The CoApp however, did not lay down fixed principles as to what would be relevant to determining whether proceedings should be stayed or whether to order the parties to engage in ADR process. Instead, approach is that the court should take into account all the circumstances of the case, including the nature of the ADR procedure in question, when considering whether a particular process is or is not likely or appropriate for the purpose of achieving the important objective of bringing about a fair, speedy and cost-effective solution to the dispute and the proceedings, in accordance with the overriding objective. Bar Council stated that the following factors were relevant to the exercise of the court's discretion: i. form of ADR being considered ii. whether parties were legally advised iii. whether ADR likely to be effective/appropriate without such advise/representation iv. urgency of the case, and reasonableness of delay caused by ADR v. whether delay would vitiate claim or give rise to any limitation issue vi. cost of ADR, in absolute terms, and relative to the parties' resources and value of the claim vii. whether any realistic prospect of claim being resolved through ADR viii. whether significant imbalance in parties' level of resources or bargaining power etc ix. reason given by parties for not wishing to mediate eg. prior unsuccessful attempts x. reasonableness and proportionality of the sanction in event party declined ADR in face of order of the Court. 3. The following specific leading case authorities (which you should be able to refer to by name): *Halsey* and *Churchill* [HALSEY] The Court of Appeal held that while the court has the power to stay proceedings to allow parties to engage in ADR, it cannot compel parties to participate in mediation or any other form of ADR. The court also held that compelling parties to participate in mediation would be a violation of their right to access the court, as guaranteed by Article 6 of the ECHR. Overall, Halsey v Milton Keynes General NHS Trust is an important case for its interpretation of Article 6 of the ECHR and its recognition of the importance of the court's role in resolving disputes. The case highlights the need for careful consideration of the facts of each case when deciding whether to refer parties to mediation or other forms of ADR, and the importance of respecting parties' right to access the court. [CHURCHILL] The Court of Appeal found the comment in Halsey was 'obiter' (made in passing and not binding in other cases). Halsey was about costs and not whether to order parties to take part in mediation. The court was not bound by it and did not have to dismiss the local authority\'s application for a stay. **When a court can stay proceedings** The Court of Appeal held that a court can lawfully stay existing proceedings for, or order, parties to engage in a non-court based dispute resolution process, but should only do so if it:   - does not impair the very essence of the claimant's right to a fair trial, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost  - Based on the circumstances of the case, the court refused to order a stay as things had moved on considerably. It said, "there is little point in doing so now, since nothing will be gained if a one month stay were granted as the council seeks."  ### Civil Procedure Rules The court referred to relevant sections of the Civil Procedure Rules (CPR), including:  - CPR 1.4(1) furthering the overriding objective by actively managing cases  - CPR 1.4(2)(e) encouraging parties to use an ADR procedure if the court considers that appropriate and facilitating the use of such procedure   - CPR 3.1(4) when giving directions, the court will take into account whether a party has complied with a practice direction and any relevant pre action protocol  - CPR 3.1(5) the court may order a party to pay money into court if it has without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol  - CPR 26.5(1) allows a party, when filing a completed directions questionnaire to make a written request for the proceedings to be stayed while the parties try to settle the case by ADR or other means and  - CPR 26.5(3) allows the court to stay proceedings, even without the parties requesting it, if the court considers that such a stay would be appropriate   4. Civil Procedure Rules and/or Practice Directions: Practice Direction (Pre-Action Conduct and Protocols) paragraphs 1-17. (The White Book) \[1,7, 8-1112 to 17\] Starting at p2621 CPR WB Part 1. C1-001 2 - This PD applies to disputes where no pre-action protocol (specific) applies. C1-002 - OBJECTIVES OF PRE-ACTION CONDUCT AND PROTOCOLS 3 Exchange sufficient information to - a. understand each other's position b. make decisions about how to proceed c. try to settle issues without proceedings d. consider form of ADR to assist settlement e. support efficient management of those proceedings f. reduce costs of resolving the dispute C1-004 - STEPS BEFORE ISSUING A CLAIM AT COURT 6 - Where there is no P-AP in place, parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind compliance should be proportionate. Steps will usually include - a. C writing to D with concise details of claim. Letter should include basis on which the claim is made, summary of the facts, what C wants from D, and if money - how the amount is calculated; b. D responding within a reasonable time - 14 days in a straightforward case and no more than 3 months in a very complex one. Reply should confirm whether claim accepted and if not accepted, why - together with explanation as to which facts or parts are disputed & if D is making counterclaim (+ details of that counterclaim) c. parties disclosing key documents relevant to issues in dispute C1-005 - EXPERTS 7 - CPR 35.4(1) = Court must give permission before expert evidence can be relied upon. Many disputes can be resolved without expert advice or evidence C1-006 - SETTLEMENT AND ADR 8 - Litigation should be a last resort - parties should consider whether negotiation or another form of ADR might enable them to settle. 9 - Parties should consider possibility of reaching a settlement at all times. 10 - May use of ADR including - a. mediation, a third party facilitating a resolution b. arbitration, a third party deciding a dispute c. early neutral evaluation, a third party giving an informed opinion on the dispute d. Ombudsmen schemes 11 - If proceedings are issued, parties may be required by court to provide evidence that ADR has been considered. C1-007 - STOCKTAKE AND LIST OF ISSUE 12 - Where a dispute not resolved after PAPs or this PD followed, parties should review their positions. They should consider the papers and the evidence to see if proceedings can be avoided / or at least seek to narrow the issues in dispute before C issues proceedings. C1-008 - COMPLIANCE WITH THIS PRACTICE DIRECTION AND THE PROTOCOLS 13 - The court will take into account non-compliance when giving directions for management of proceedings (CPR 3.1(4)-(6)) and when making orders for costs (CPR 44.3(5)(A)) 14 - The court may decide there has been a failure to comply when a party has - a. not provided sufficient info to enable the objectives in para 3 to be met b. not acting within a time limit set out in a relevant protocol or reasonable period c. unreasonably refused to use a form of ADR or failed to respond at all to invitation to do so 15 - Where non-compliance with PAP or this PD, the court may order that - a. parties relieved from obligations to comply or further comply with PAP or this PD b. proceedings are stayed while steps taken to comply 16 - Court will consider effects of non-compliance when deciding whether to impose sanctions which may include - A. Order that party at fault pay cost or part of cost of proceedings B. if party at fault is C who has been awarded sum of money, then order depriving that party of the interest on that sum or providing it at a lower rate C. if party at fault is D, and C awarded sum of money, then order award interest on that sum at a higher rate than would have otherwise been awarded. C1-009 - LIMITATION 17 - PD & PAPs do not alter statutory time limits for starting court proceedings. If proceedings are started to comply with a statutory time limit before parties have followed the procedures in this PD or the relevant PAP, the parties should apply to the court for a stay in proceedings while they so comply. 5. The commentary on the Practice Direction (Pre-Action Conduct and Protocols) at paragraphs C1A-005 to C1A-007 of Volume 1 of the White Book. [POINTS TO NOTE ON THE APPLICATION OF THE PROTOCOLS] The protocols are codes of best practice, to be followed generally but not slavishly. the court confirmed that it will look for substantive compliance and will keep in mind the need for proportionality, saving costs, and efficient progress of the litigation when assessing compliance with the practice direction in *ADD2 Research and Development Ltd v DSpace Digital Signal Processing and Control Engineering GmbH \[2020\].* Reasonableness is the watchword. The court is much more interested in compliance with the spirit of a protocol than the exact letter. A letter of claim will include the main facts and circs, the nature of the dispute or claim (breach of contract, negligence) and the remedy sought. C should also provide as much info as possible on likely value of claim. Defendant's response letter should be detailed and not simply deny the claim. If liability is denied, D must give proper reasons and attach any relevant documents on wich they rely, if not previously disclosed. The protocols strongly encourage early settlement discussions and use of ADR. The courts are not sympathetic to parties who are unwilling to at least try to narrow down the issues or to hold settlement discussions pre-issue. [COMPLIANCE WITH THE PRACTICE DIRECTION AND PROTOCOLS: THE COURT'S ROLE] The court should treat the protocols as the reasonable approach to pre-action conduct for that type of dispute and are able to impose sanction for breaches. CPR r3.1 provides: (4-) Where the court gives directions it will take into account whether or not a party has complied with the Practice Direction (Pre-action conduct) and any relevant pre-action protocol (5-) The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, PD or relevant PAP Rule 44.2(5) enables court to take into account when making orders on costs, the conduct of the parties before, as well as during, proceedings, in particular extent to which parties followed PDs or PAPs. 6. The wording of the Practice Direction for Personal Injury Claims at paragraphs C2-001 to C2-016 of Volume 1 of the White Book. C2-001 - 1.1.1 - Designed for PI claims likely to be allocated to fast track - not intended for: - small claim RTA - disease and illness claims etc - these have their own protocols 1.3.2 - Where a claim exits a low value pre-action protocol because: a. D alleges contributory negligence b. D does not complete and send CNF (claim notification form) response, or c. D does not admit liability Then the claim will proceed under this protocol from paragraph 5.5. 1.4.2 - Where one or more parties consider that the detail of the Protocol is not appropriate in this case, and proceedings subsequently issued, the court will expect an explanation as to why the Protocol has not been followed, or has been varied. 1.5 - Where either party fails to comply with this Protocol, the court may impose sanctions - when deciding the court will look at whether the parties have complied in substance with the relevant principles and requirements. C2-002 EARLY ISSUE 1.6 Protocol recommends a defendant be given THREE MONTHS to investigate and respond to claim before proceedings issued. May not be possible eg. if C consults legal rep close to end of limitation period, C's sol should give as much notice of intention to issue proceedings as practicable. C2-003 LITIGANTS IN PERSON 1.7 If party does not have legal rep, they should still, as far as reasonably possible, fully comply with this protocol. C2-004 OVERVIEW OF PROTOCOL - GENERAL AIM 2.1 The Prot objectives are to - g. encourage exchange of early and full info about dispute h. encourage better and earlier pre-action investigation by parties i. enable parties to avoid litigation by agreeing settlement of dispute before proceedings commenced j. support just, proportionate and efficient time management of proceedings where litigation cannot be avoided k. promote provision of medical or rehabilitation treatment to address needs of C at earliest opportunity. C2-005 Illustrative flowchart at Annex A shows each of the steps parties expected to take before commencing proceedings C2-006 LETTER OF NOTIFICATION 3.1 - C or their legal rep may wish to give D notification as soon as they know a claim is likely, but before they are able to send detailed letter of claim. 3.2 - This letter of notification should advise D/insurer of any relevant info available to assist with determining issues of liability/suitability of claim for interim payment or early rehabilitation. 3.3 - This letter does not start the clock for letter of response - BUT letter of notification should be acknowledged with in 14 days of receipt. C2-007 REHABILITATION 4.1 - Parties should consider as soon as possible whether C has reasonable needs that could be met by medical treatment or other rehab methods. C2-008 LETTER OF CLAIM 5.1 - C should send TWO copies of letter to defendant - one is for D, other is for insurer. D should pass it on as soon as possible, and in any event within 7 days upon receipt. 5.2 - Letter should include info covered in template at Annex B1. Level of detail should at least be sufficient info for D to assess liability and estimate likely size and heads of claim without necessarily addressing quantum in detail. 5.3 - Should also contain clear summary facts on which claim is based with indication of nature of any injuries suffered and how these Impact C's day-to-day function and prognosis. Financial loss should be outlined with an indication of the heads of damage to be claimed and the amount of that loss - unless this is impracticable. 5.5.1 - Where claim no longer continues under either low value protocol, the CNF completed under those protocols can serve as the letter of claim under this protocol 5.5.2 - Where claim no longer continues under RTA small claims protocol, the SCNF completed under that protocol can be used as the letter of claim here. C2-009 STATUS OF LETTERS OF CLAIM AND RESPONSE C2-010 THE RESPONSE 6.1 - Annex B2 template suggested content of letter of response. 6.2 - D must reply within 21 calendar days from date of posting of the letter identifying the insurer (if any) 6.2 - Where no response in 21 days, C is entitled to issue proceedings. Compliance with this paragraph will be taken into account on the question of assessing D's costs. 6.3 - D has 3 months from date of acknowledgement of letter of claim to investigate. The D (insurer) should reply by no later than end of that period. - If is admitting liability, they must state: - the accident occurred - it was caused by D's breach of duty - and claimant suffered loss - and there is no defence under LA 1980. 6.4 - Where accident occurred outside E&W, time period of 21 days and 30 months extended to 42 days and 6 months. 6.5 - If D denies liability and/or causation, their version of events should be supplied and enclose documents in their possession which are material to the issues between the parties. 6.6 - An admission made by any party under this protocol may well be binding on that party in the litigation. C2-011 DISCLOSURE 7.1.2 - Annexe C = specimen, non-exhaustive, list of documents likely to be material to diff types of claim 7.1.3 - If liability admitted in full, disclosure limited to docs relevant to quantum. C2-012 EXPERTS 1. CLAIMS WHICH DO NOT CONSIST OF, OR INCLUDE, A CLAIM FOR A WHIPLASH INJURY 7.2 - Save for multi-track likely cases, Protocol encourages joint selection of, and access to, quantum experts and occasionally liability experts. 7.2 - The expert report produced is not a joint report for the purposes of CPR Part 35. Protocol provides for the nomination of the expert by the claimant in a PI claim. 7.3 - Before any party instructs an expert, they should provide the other side with a list of one or more experts in the relevant speciality whom they consider suitable to instruct. - 14 days to object - first party should then instruct mutually acceptable expert. Where a medical expert is to be instructed (save for whiplash), the C's solicitor will organise access to relevant medical records. If D objects to all listed experts, the parties may instruct experts of their own choice. Questions on the expert report, to the instructed expert(s) must be put within 28 days of the service of the report - must only be for purposes of clarification. 2. CLAIMS FOR WHIPLASH INJURY 7.12.4 a. C must obtain fixed cost medical report from accredited medical expert - using MedCo website b. expert to provide fixed cost medical report, it is expected in most cases they will not need to see any medical reports 7.12.5 Where C obtains medical report in respect of more serious injury suffered at same time as whiplash - C may use that report provided - a. it is from a GMC specialist listed doctor b. it provides evidence of whiplash injury 'Whiplash' means ain jury or injuries of soft tissue in the neck, back or shoulder suffered because of driver negligence. C2-013 NEGOTIATIONS FOLLOWING ADMISSION Where D admits liability before proceedings issued, C should send to that D - A. any medical reports on which C relies B. schedule of any past and future expenses and losses claimed C should delay issuing proceedings for 21 days from disclosure of \^\^ (unless it would become time-barred) to enable parties to consider if claim can be settled. CPR Part 36 permits Cs and Ds to make offers to settle pre-proceedings. Party making offer should supply sufficient evidence/info to enable the offer to be properly considered. - Except for any whiplash claim, medical reports may not be necessary f there is no significant continuing injury and detailed schedule may not be necessary in low value case - for whiplash, no offer can be made or accepted until after fixed cost medical report disclosed. C2-014 ALTERNATIVE DISPUTE RESOLUTION As part of the protocol parties should consider whether negotiation or another form of ADR might enable them to resolve dispute without commencing proceedings. If proceedings issued, parties may be required by the court to provide evidence ADR has been considered - any unreasonable refusal will be taken into account in determination of who bears the costs. C2-015 QUANTIFICATION OF LOSS - SPECIAL DAMAGES To D who admits liability - Schedule of and past and future expenses and losses which are claimed, even if schedule is necessarily provisional. C2-016 STOCKTAKE 7. The commentary on the Practice Direction for Personal Injury Claims at paragraphs C2-001.1 and C2-012.1 of Volume 1 of the White Book. C2-001.1 - SCOPE AND CONTENT - protocol applies to potential fast track with value up to £25,000. - its general approach should still be followed in larger claims except occ disease and clin neg. - protocol specifies that parties must cooperate on the selection of an expert, especially relating to prognosis report on accident victim - it contains a non-exhaustive detailed list of documents which D should disclose with any denial of liability in particular types of cases - Annex B - When claims exit from small claims protocols they proceed under this protocol - when a claim drops out of the new protocol eg. because D does not admit liability at all, claim proceeds under PI protocol. C2-012.1 - DISCLOSURE OF AN EXPERT'S REPORT - Protocol doesn't say what happens to report which C doesn't wish to disclose as it is unhelpful - *Carlson v Tonwsend* \[2001\] - CoApp confirmed PI PROT does not require a medical expert to be jointly instructed or report to be disclosed to B - where expert's intended has not been revealed. 8. Paragraphs 8.03, 8.23, 8.24-8.25, 11.05-11.06 and 11.60 of The Jackson ADR Handbook (Third Edition).