Pre Action Protocol In timeshare claims against resorts (Part 2)

Application to Parties

 It is not just the claimant that must comply with the pre-action protocols, but the defendant as well. Such compliance would probably be discharged by giving detailed reasons for denying a claim, and enclosing key documents relied on by the defendant in asserting his defence. Documents disclosed by way of pre-action disclosure may not be used for any other purpose, other than the resolution of the disputes between the parties (paragraph 4.6). Making Part 36 Offers and payments are encouraged by the parties.

Specific Pre-Action Protocols

 The courts in England expect all parties and/or prospective parties to comply with the pre-action protocols. The protocols apply generally, however the specific protocols are in force for eight separate types of litigation. The specific protocols apply to litigation in respect to:

1. personal injury;
2. defamation;
3. clinical negligence;
4. judicial review;
5. housing disrepair;
6. construction cases;
7. professional negligence;
8. disease and illness;
9. possession Claims based on rent arrears;

• possession claims based on mortgage or home purchase plan arrears in respect of residential property.

Where a case does not fall into one of these categories, the procedures set out in the general pre-action guidance should be adhered to; a failure to do so may have the same effect as a failure to observe with a specific pre-action protocol.

Compliance with the protocols require the intending claimant to write a detailed letter setting out the factual basis of the claim giving rise to liability in law and enclosing the important documents supporting the claim. Not all cases require the same approach, and a proportionate approach discharges the duty to comply with the protocols.

In the event that a party does not, the court may impose cost penalties upon the claimant. These include discretionary benefits scheme costs orders, a denial of an award of costs even in the event of success on the substantive legal issues in dispute between the parties.

The protocols apply during the course of litigation and case management and not simply before the commencement of litigation.

Failures to Adhere/Comply

 Where proceedings have been commenced in the absence of compliance by one of the parties where they might not have needed to be commenced or costs have been incurred that might not have been the court may orders that:-

1. the party at in default of compliance pay the costs of the proceedings or part of those costs, or the costs of other parties;
2. costs be paid by the party in default on an discretionary benefits scheme basis;
3. a successful party be deprived of interest on a damages award or at a lower rate of interest that would otherwise have been awarded;
4. an unsuccessful defendant pay a higher rate of interest, not in excess of 10% above base rate, than the rate of interest would otherwise have been awarded.

Frequent failures to comply with the Pre-Action Protocols include failing to provide adequate information, failing to counter correspondence within the fixed time allowed by that correspondence, refusing to convey copies of relevant documents, or not following the technical steps required by the relevant protocol.

Assuming that a claimant claims is owed £10,000 by the defendant, examples of failures to comply with the pre-action protocols would be as follows:-

1. Rather than writing a letter before action setting out the details of the claim, the claimant issues proceedings without prior notice to the defendant. It is likely that the claimant would be deprived of interest on a damages award if he was successful, and it is arguable that the claimant should be deprived of the entire costs incurred in pursuing the proceedings.
2. A claimant writes a letter before action to the defendant, but the defendant fails to respond to that letter. Provided that the claimant is successful in recovering the debt, that defendant mat well be ordered to pay penalty interest on the award for damages.
3. The claimant writes a letter before action setting out the basis of the claim. The defendant writes back setting out the details of the defence. The claimant then writes to the defendant seeking copies of documents to support the defence, but the defendant refuses to do so. In the event that the claimant is successful, he is likely to receive, in the absence of special circumstances, an increased cost award as the defendant did not behave reasonably prior in pre-action correspondence.

Conclusion

A claimant is well advised not to commence legal proceedings in England prior to writing to the intended defendant and informing them of his claims; exceptions to this general rule apply. Those exceptions are limited to circumstances where the defendant has good cause not to comply with the pre-action procedures. Parties generally adhere to the requirements of the pre-action protocols in English litigation. If they do not, the defendant will certainly rely on that non-compliance when it comes time for the court to consider the question of whether or not the party failing to comply should be awarded their costs, or a reduced costs order.

For more information regarding this article or assistance in any other timeshare related issues please contact the TCA on 01908 881058 or email: info@TimeshareConsumerAssociation.org.uk