EWJ 60 April 2025 web - Journal - Page 95
papers held by a policyholder, but consideration
should be given precisely to what and how much
should be volunteered. With speculative claims sometimes the provision of information will assist a claimant
determine there is no viable cause of action, whereas
in other cases one might be careful not to release more
information to a claimant than that to which they are
entitled. For example, consideration might be given
to whether there is a lien or what parts of a file do not
represent the client’s documents and therefore can be
retained. There are, of course, also incidents where a
party requesting a file may not even be the client, but
a related or third party, in which case it would be crucial to identify this at the first instance to avoid breaching client confidentiality and in certain cases privilege.
about a party not known during the underlying
retainer, which a claimant might be keen not to reveal.
For example, knowledge of the claimant’s level of sophistication, honesty and known associates could all
have a material bearing on liability and quantum.
Protocols. If the Pre-action protocols are going to be
followed then a number of strategies can be deployed
to best position a policyholder.
In the PAP for Negligence claims, you have up to 21
days to acknowledge a LOC and the 3 month period
for investigation runs from the date of the acknowledgement, not the LOC, so you don’t need to acknowledge immediately and can bank up to an
additional 21 days to investigate. This might be particularly important in complex or historic claims or
those where expert evidence might be needed.
Limitation standstills can be another first indication
of a claim and the timing of these is obviously fundamental. Careful consideration needs to be given to requests for urgent standstills, where it is often a balance
between refusing and forcing a claimant to issue a protective claim form, which might ultimately not be necessary if a claim can be resolved pre-action, versus
agreeing a standstill where a claimant might not otherwise have incurred the costs of issuing and/or could
have failed to issue properly within the remaining
time, thereby avoiding the claim altogether.
While it might be argued that pressing claimants for
more information could incur more costs and time,
we think claimants should not be allowed off the hook
in terms of compliance with the protocol if the LOC is
poorly drafted, vague or light on points of difficulty.
However, although demanding transparency is important and should probably be pressed if a claimant
is reticent, be wary of being too pedantic as the touch
stone is “substantial compliance” rather than the letter.
Also, better results are often achieved by picking up
the phone to the other side to build early cooperation
or via early WP correspondence.
The former might result in adverse costs consequences if the refusal is later deemed unreasonable,
while the latter could get a claimant out of a predicament and provide time for it to get its claim together.
However, if an agreement is entered into, carefully
check the definition of the dispute to ensure it reflects
the claim(s) being intimated. Also, that the agreement
does not waive any existing limitation defence and depending on whether there is a long-stop date and how
far in the future it is, that there is adequate provision
to terminate on notice (usually for a period no more
generous than the remaining limitation period at the
time of the claimant’s request).
The Letter of Response is an opportunity to persuade
solicitors instructed for a claimant of the risks and reasons not to bring formal proceedings. It is also a good
opportunity to convey a message to a claimant; less
legal responses can sometimes be more effective or
ones which highlight the costs incurred and liability if
proceedings are commenced. We have seen many
claims not progress after sending a robust and wellargued LOR, but in cases where there are weak defences, consider sending a Letter of Settlement instead
of an open LOR to direct attention towards negotiation and resolution within the protocol, without
proceedings.
Where claimants request extensions to existing standstills consider whether agreement to those should be
made conditional on further information or steps
being taken by a claimant, particularly if the reason
for the extension is a claimant’s delay or to provide
time for a claimant to do something. We have come
across a number of cases where claimants have failed
to comply with the condition and as a result abandoned the claim.
Litigation considerations
Litigation is an adversarial process. If despite a robust
LOR a claimant still brings proceedings, there are various procedural traps to be aware of, which might be
fatal to a claim and result in disposal at an early stage.
For example, defendants should double check the
claimant has issued within time. The date of the claim
form should be considered and checked with the
Court the date the claimant asked the Court to issue
it, which could be earlier.
Opponents. Policyholders in some professional
contexts will have been obliged to follow Know Your
Client procedures, but when disputes arise it is also
paramount to KYO – Know Your Opponent. Early
due diligence on a claimant can be very useful in understanding possible drivers for the claim, including financial pressures, competition and other commercial
matters that might reveal leavers to pull. For example, can the claimant fund litigation? Has it lost litigation before? If the opponent is a company, are its
annual accounts pending or overdue? What do they
say about anticipated litigation? Will it be good for an
adverse costs order? Are there risks of insolvency? Detailed due diligence can identify new information
EXPERT WITNESS JOURNAL
A further, often encountered point, is whether the
claimant has issued against the correct defendant entity. Claimants frequently make a mistake about the
name of a defendant, which can in some circumstances lead to the claim being struck out, particularly
if the error was of a type the Courts will generally not
correct. Challenges are particularly worth considering
if limitation expired shortly after proceedings were
commenced.
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