ROYAL COURT OF
JERSEY
RC17/01
Pre Action
Communications
1.
This Practice Direction applies to all
disputes other than applications for injunctive relief made without notice to a
potential defendant, applications for directions pursuant to the Trusts (Jersey)
Law 1984 (as amended), administrative appeals and judicial review.
2.
The purpose of this Practice Direction is to:-
a.
encourage exchange of material
information about a legal action being considered by a party; and
b.
to allow parties an opportunity to
settle a claim before the commencement of proceedings.
3.
Where proceedings are commenced, the
Court will treat the requirements of this Practice Direction as defining the
reasonable standards expected by a party prior to commencing proceedings.
4.
Where the Court is considering whether
or not parties have adhered to this Practice Direction once proceedings have
been commenced, the focus of the Court will be on substantial compliance and
not minor departures, and whether non-compliance has prevented the objectives
of this Practice Direction being achieved.
5.
The Practice Direction should not be
seen or used as a tactical device by one party to attempt to seek an advantage
over another or to generate unnecessary costs.
6.
The costs of both parties in complying
with this Practice Direction shall be kept to a modest level and shall be
proportionate to the complexity of the case and the amount of money at stake.
7.
Where this practice direction applies prior
to commencing proceedings a plaintiff or his legal adviser shall send to each
proposed defendant a Claim Letter which shall contain the following
information:-
i. The
plaintiff’s full name and sufficient other information to enable any defendant
to identify the plaintiff;
ii. The full
name of each proposed defendant and sufficient other information to enable each
defendant to be identified by any defendant;
iii. A clear
summary of the facts and the legal basis upon which the claim, and if more than
one, each claim is based;
iv. The
amount of money claimed. The summary
should be the best estimate a plaintiff is able to provide of the likely amount
of damages claimed and should identify different types of loss sought;
v. Any
invitation to meet or other proposals to allow parties to explore settlement;
8.
Within 14 days of receipt of a Claim
Letter a defendant must acknowledge receipt in writing and provide any contact
details of the person dealing with the Claim Letter, including the name and
address of any insurer.
9.
If a defendant does not respond within
14 days a plaintiff may issue proceedings without having to take any further
steps pursuant to this Practice Direction;
10. Where a
defendant considers that the matters raised in the Claim Letter cannot or
should not be determined by the Royal Court, a defendant shall set out a clear
summary of why this is the case identifying which court or other forum it
contends should determine the plaintiff’s claim, if the matter cannot be
resolved.
11. Where a
defendant considers that a claim is brought too late, the defendant’s response shall
contain a summary of the facts relied on and the reasons why the claim is said
to be out of time.
12. Where a
defendant considers that the plaintiff has pursued the wrong entity, the
defendant’s response shall summarise why this is the case and insofar as the
information is within the reasonable knowledge of the recipient of the Claim
Letter, that recipient shall identify the correct defendant.
13. In all
cases when acknowledging receipt of the Claim Letter, the defendant shall
a.
as far as reasonably practical address
any matters it can that fall within paragraphs 10-12; and
b.
Indicate when it intends to provide a
substantive response.
14. Any substantive
response after acknowledging the claim Letter shall be provided as soon as reasonably
practical - 14 days in a straightforward case and no more than 3 months for the
most complex cases. The response
should also address any matters falling
within paragraphs 10-12 that the defendant could not address when acknowledging
receipt of the Claim Letter
15. What is
reasonably practical will be assessed having regard to the factual complexity
of the case and what steps it is necessary for a defendant to take to respond
to the Claim Letter.
16. For
medical negligence cases the availability of relevant medical records and practitioners
involved in any treatment referred to in the Claim Letter and the need for
expert advice may be relevant factors in assessing what is reasonably
practical.
17. A
defendant’s response shall further provide a clear summary of the facts and
legal basis set out in the Claim Letter which are agreed or not agreed, including
whether or not the defendant agrees the jurisdiction of the Royal Court;
18. A
defendant’s response shall also set out any allegations of contributory
negligence or any counterclaim the defendant intends to make. Any such allegation shall contain the same
level of detail as is required for the Claim Letter;
19. Where a
defendant makes an allegation of contributory negligence or a counterclaim
against a plaintiff a plaintiff shall respond as soon as reasonably practical and
shall provide the same information as is required for the defendant’s response;
for straightforward claims this should be within 14 days and within 6 weeks for
complex cases.
20. As far
as possible any Claim Letter and any response should be clear and should
describe a party’s position in a straightforward and concise manner.
21. Following
the exchange of the communications required by this Practice Direction the
parties and their advisers shall consider whether negotiation or some form of
alternative dispute resolution might enable them to settle their dispute
without commencing proceedings;
22. The
obligation to consider the possibility of settlement is a continuing
requirement and shall apply at all times including after proceedings have
commenced;
23. Where
proceedings are commenced the Court may consider how far any party has taken
reasonable steps to comply with the terms of this Practice Direction. Any
non-compliance may be taken into account when the Court is considering orders
for costs, either during the proceedings or following trial. The Court may decide there has been failure
of compliance where a party has:-
a. not
provided a clear summary of the facts or legal basis upon which a claim or counterclaim is made;
b. not
acted within a time limit set out in this Practice Direction or within a
reasonable period; and/or
c. unreasonably refused to negotiate or
consider a form of alternative dispute resolution.
24. Where a
plaintiff fails to comply with this Practice Direction because of concerns
about a claim being out of time if proceedings are not immediately issued and
served, the Court at any stage may take such non-compliance into account in
relation to the question of costs.
This practice
direction shall come into force on 1st June 2017