Changes made by the new Pre-Action Protocols

The purpose of this lecture is to demystify the recent changes in Northern Ireland County Court practice, procedure and quantum and reassure you that whilst these changes are far-reaching they are not impossible to deal with.

The key documents to be considered are:

  1. County Court (Amendment) Rules Northern Ireland 2013.
  2. The County Courts (Financial Limits) Order (Northern Ireland) 2013.
  3. Pre-Action Protocol for Personal Injury Litigation and Damage only road traffic accident claims.
  4. The Judicial Studies Board for Northern Ireland – Guidelines for the assessment of General Damages in Personal Injury Cases in Northern Ireland (Fourth edition) Published on 4th of March, 2013.

Increase In Jurisdictional Limits

As a result of the County Courts (Financial Limits) Order (Northern Ireland) 2013 the general civil jurisdiction of the County Courts in Northern Ireland has been increased from £15,000 to £30,000. The jurisdiction of the District Judge in the County Courts has also been increased from £5,000 to £10,000. This is a historic change in the Northern Ireland Courts system but it is important to note that the legislation does not have retrospective effect.

New Rules

The County Court Rules Committee introduced new rules to make provision for the increases in jurisdictional limits in terms of new scale costs, new procedures and costs increases.  County Court (Amendment) Rules (Northern Ireland) 2013 SR No. 19.

New Pre-Action Protocol for Personal Injury Litigation and damage only claims

Two new pre- action protocols have been introduced for the County Court to coincide with these changes. One is for Clinical Negligence Litigation and the other protocol that we are concerned with is the Pre- Action Protocol for Personal Injury Litigation and Damage Only Road Traffic Accident claims.

A protocol is a series of steps that you are expected to take before commencing litigation.

The protocol specifically states that at all times during the course of civil litigation in this jurisdiction – Northern Ireland it is important to bear in mind the overriding objective set out an Order 58 Rule 1 to the County Court Rules (Northern Ireland) 1981. In order to enable the Court to deal justly with the litigation that objective requires the Court, so far as practicable, to:

  1. ensure the parties are on an equal footing;
  2. save expense;
  3. deal with the litigation in ways which are proportionate to-
  4. the amount of money involved;
  5. the importance of the case;
  6. the complexities of the issues; and
  7. the financial position of each party;
  8. ensure that the litigation is dealt with expeditiously and fairly; and
  9. allocate to the litigation an appropriate share of the court resources, while taking into account the need to allocate resources to other cases.

It has been generally thought that the protocol can be considered as a best practice guideline. We have all been awaiting the reaction of the Court in a case where the protocol has not been complied with.

In a judgment delivered on 3rd of May, 2013 the High Court made it clear that Insurers and Defendants who fail to comply with the NI Pre-Action Protocol may face cost penalties.

Aims of the Pre-Action Protocol

The pre- action protocol aims to achieve best litigation practice by encouraging:

  • More pre- action contact between the parties.
  • Better and earlier exchange of information.
  • Better pre- action investigation by both sides.
  • Placing the parties in a position where they may be able to settle cases fairly and early without litigation.
  • Enabling proceedings to proceed according the court’s timetable and efficiently, if litigation does become necessary.

The promotion of an overall “cards on the table” approach to litigation in the interest of keeping the amount invested by the participants in terms of money, time, anxiety and stress to a minimum, consistent with the requirement that the issues be resolved in accordance with accepted standards of fairness and justice.

In the  judgment delivered last month (Monaghan v Graham [2013] NIQB 53), the High Court in Northern Ireland made clear Insurers and Defendants who fail to comply with the NI Pre-Action Protocol may face cost penalties. Stephens J stated the following:

“At a fundamental level the pre- action protocol is an articulation of fairness. Before proceedings are issued the plaintiff should give proper information to allow a view to be formed by the defendant. A similar obligation rests on the defendant.”

Pre- Action Protocol Procedure

  1. A preliminary notification letter is sent to the defendant outlining the basic details and circumstances of claim.
  2. A detailed letter of claim is then sent to the defendant’s legal representative giving a clear summary of the facts, details of injuries, financial loss, hospitals attended, and CRU details.
  3. If there is no response from the defendant within 21 days then the Plaintiff commences proceedings.
  4. The defendant’s solicitor/ insurer has 3 months to investigate the claim.
  5. By the end of the 3 months the defendant’s solicitor/insurer has 3 months to investigate the claim. They must
  6. have indicated their position on liability. If they deny liability, then documentation in support of their position should be disclosed.
  7. The parties are required to consider the suitability of Alternative Dispute Resolution procedures. The Court may require prove as to the consideration of same.

Costs penalties for failure to comply with the Northern Ireland High Court Pre- Action Protocol

Following recent case law it is of vital importance that insurers and solicitors in Northern Ireland comply with the Pre-Action Protocol. Following the decision in the case of Richard Monaghan v The Very Reverend Graham sued on behalf of Trustees of Milltown Cemetery [2013] NIQB 53 the precident is set for costs penalties for failure to comply.

More information on this judgement is contained in our recent article.

New procedures introduced by County Court Rules Committee

The County Court Rules Committee introduced new rules to make provision for the increases in jurisdictional limits in terms of new scale costs, new procedures and costs increases. County Court (Amendment) Rules (Northern Ireland) 2013 SR No. 19.

The Rules amend the County Court Rules (Northern Ireland) 1981 (S.R.1981 No. 225) to-

  • allow the plaintiff to require the defendant to serve particulars of defence.
  • require  the plaintiff to notify the defendant in writing of his intention to lodge the certificate of readiness no later than 14 days prior to lodging the certificate.
  • allow interlocutory applications to be determined by a Judge without a hearing in the absence of a specific provision to the contrary.
  • allow District Judges to deal with interlocutory applications which fall within their jurisdiction;
  • provide that discovery is automatic;
  • allow interrogatories to be served without leave;
  • provide rules on evidence in clinical negligence cases;
  • allow a District Judge to exercise the same powers as a County Court Judge in specific circumstances.

Are interlocutory applications   necessary such as an application to compel replies or specific discovery. These can now be decided by a Judge without a hearing in the absence of specific provision to the contrary.   

The Insurer will have to liaise with the Solicitor to gather any information necessary to respond to interrogatories served on the defendant.

Interrogatories are now an important tool for the defence. They can be served without leave by either party mirroring the situation in the High Court.

Valuations

New Rules

As a result of the County Courts (Financial Limits) Order (Northern Ireland) 2013 the general civil jurisdiction of the County Courts in Northern Ireland has been increased from £15,000 to £30,000. The jurisdiction of the District Judge in the County Courts has also been increased from £5,000 to £10,000. The legislation does not have retrospective effect.

More cases will now fall to be dealt within the jurisdiction of the District Judge.

  • minor soft tissue injuries and whiplash injuries where moderate and full recovery takes places within, at most, 2 years  commands a range of up to £ 12,000.
  • minor psychiatric damage commands a range of up to £10,500
  • minor post traumatic stress disorder commands a range of up to £ 3,500 to £ 10,000

Likewise, more cases will now fall to be dealt within the jurisdiction of the County Court eg:

  • Head Injury commands a range of £ 3,000 to £ 30,000
  • Moderate Post Traumatic Stress Disorder commands a range of £10,000 to £40,000.
  • Moderate back injuries commands a range of £14,000 to £42,000.

It is anticipated that the changes will mean that the process of taking a case in the County Court is more streamlined with each party knowing the other’s case at an early stage, which should allow for meaningful negotiations to take place at an early stage in the litigation process.

Changes To Costs

New Scale Costs

The County Court (Amendment) Rules Northern Ireland 2013 amend the County Court Rules (Northern Ireland) 1981 (S.R.1981 No. 225) to  provide a new Appendix 2 which includes 3 additional new bands in Table 1

Three new costs brackets have been created

  • Exceeds £15,000 but does not exceed £20,000
  • Exceeds £20,000 but does not exceed £25,000
  • Exceeds £25,000 but does not exceed £30,000

Further changes to costs

  • 2% increase on existing scale costs for Solicitors and Counsel. There will be a further increase in March 2014.
  • Scale costs increase where no Notice of Intention to Defend is lodged and judgment is marked.
  • Solicitor can claim 50% of Solicitors scale fee on amount claimed/decreed, not exceeding £600. Counsel receives 50% Counsel scale  fee also.
  • Increased fees for drafting Notice for Particulars, Replies to Notice for Particulars, Interrogatories and Answers to Interrogatories.
  • Provision for a 50% of Counsel’s fee enhancement for a Solicitor who conducts a trial/hearing without Counsel.

Checklist  For Insurer

  • Review appendix 2 to estimate costs for reserve purposes?
  • Does the claim fall into any of the 3   new claims costs brackets?
  • Can cases be settled before March, 2014  before the further uplift in cost
  • Cross check pleadings against new fees to track drafting costs.
  • Are there any Solicitor advocate and costs implications.

For more information on any of the topics raised in this article contact our litigation department or call 02890 231770.

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