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| Jane Lambert |
"(a) understand each other’s position;
(b) make decisions about how to proceed;(c) try to settle the issues without proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute."
Para 4 stresses that a pre-action protocol must not be used by a party as a tactical device to secure an unfair advantage over another party. Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues. Para 5 adds that disproportionate costs in complying with any pre-action protocol are likely to be irrecoverable. Para 6 states that where there is a relevant pre-action protocol, the parties should comply with it before commencing proceedings. Para 8 reminds parties that litigation should be a last resort. As part of a relevant pre-action protocol, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.
Non-compliance with a protocol can be penalized in several ways. For example, para 16 states that a party at fault may be ordered to pay costs on an indemnity basis or a successful party may be deprived of some or all of his or her costs.
Pre-action Protocol for Media and Communications Claims"(a) understand and properly identify the issues in dispute and to share information and relevant documents;
(b) make informed decisions as to whether and how to proceed;
(c) try to settle the dispute without proceedings or reduce the issues in dispute;
(d) avoid unnecessary expense and control the costs of resolving the dispute; and
(e) support the efficient management of proceedings where court proceedings cannot be avoided."
Para 3.1 requires intending claimants to notify intended defendants of their claims in writing at the earliest reasonable opportunity. They are also reminded of the need for proportionality in formulating both the letter of claim and response in para 2.2:
"In formulating both the Letter of Claim and Response and in taking any subsequent steps, the parties should act reasonably to keep costs proportionate to the nature and gravity of the case and the stage the complaint has reached."
The following information should be included in the letter of claim:
- the name of the claimant;
- the nature of and basis for the entitlement to the remedies sought by the claimant;
- any facts or matters relevant to England and Wales being the most appropriate forum for the dispute; and
- details of any funding arrangement in place.
- "any further information necessary to identify the data subject;
- the data controller to which the claim is addressed;
- the information or categories of information which is claimed to constitute personal data including, where necessary, the information which is said to constitute sensitive personal data or to fall within a special category of personal data;
- sufficient details to identify the relevant processing;
- the identification of the duty or duties which are said to have been breached and details of the manner in which they are said to have been breached, including any positive case on behalf of the Claimant;
- why the personal data ought not to be processed/further processed, if applicable;
- the nature and any available details as to any particular damage caused or likely to be caused by the processing/breach of duty complained of; and
- Where a representative data protection claim is intended to be brought on behalf of data subjects, the letter of claim should also: set out the nature of the entity which intends to bring the claim and explain how it fulfils the relevant suitability criteria – see Article 80 of the General Data Protection regulation (GDPR); include details of the data subjects on whose behalf the claim would be brought; and, confirmation that they have mandated the representative body to represent them and receive compensation, where applicable."
Para 3.7 requires letters of response to include:
- "whether or to what extent the Claimant’s claim is accepted, whether more information is required or whether it is rejected;
- if the claim is accepted in whole or in part, the Defendant should indicate which remedies it is willing to offer;
- if more information is required, then the Defendant should specify precisely what information is needed to enable the claim to be dealt with and why;
- if the claim is rejected, then the Defendant should explain the reasons why it is rejected, including a sufficient indication of any statutory exemptions or facts on which the Defendant is likely to rely in support of any substantive defence;
- in a defamation or malicious falsehood claim, the defamatory or false imputation(s) the Defendant contends was conveyed by the statement complained of, if any; and
- where the Claimant to a proposed action has indicated his/her intention to make an application to bring the claim anonymously, the Defendant should indicate whether the Defendant accepts such an order would be appropriate and give an indication of the basis for the Defendant’s position."
"(a) without prejudice discussions and negotiations between the parties;
(b) mediation – a form of facilitated negotiation assisted by an independent neutral third party; [and]
(c) early neutral evaluation (ENE) – a third party giving an informed opinion on the dispute (for example, a lawyer experienced in the field of [data protection] or an individual experienced in the subject matter of the claim)......."
Para 3.10 mentions the need to consider offers under CPR Part 36. If a dispute is not settled, para 3.11 encourages parties to undertake a further review of their respective positions, to consider the state of the papers and the evidence in order to see if proceedings can be avoided and, at least, narrow the issues between them which can assist efficient case management.
Finally, parties are referred to other provisions which they might find useful, such as CPR Part 25: Interim Remedies and Security for Costs and CPR PD48 paragraphs 3.1 and 3.2: Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 Relating to Civil Litigation Funding and Costs.
Further Information
Anyone wishing to discuss this article further may call me on 020 7404 5252 during UK office hours or send me a message through my contact form at any time.
