A Look at the Newly Introduced Pre-action Protocols in the Eastern Caribbean

The primary aim of pre-action protocols is to have parties compromise and settle disputes without the need for litigation, which should significantly reduce the number of suits within the system.

The pre-action protocols are applicable to:

Both the potential claimant and intended defendant have pre-action protocols that must be followed, failing which there may be consequential orders affecting who pays costs, the quantification of costs, payment of costs on an indemnity basis, and may lead to the imposition of sanctions. This is particularly applicable where the court deems that the matter could have been settled without commencing litigation, if the pre-action protocols were complied with.

The potential claimant as the party that is considering initiating litigation proceedings is dubbed with the responsibility of issuing a pre-action letter with sufficient details to allow the intended defendant to understand and investigate the potential claim against it. For personal injury matters and motor vehicle accident claims, the pre-action letter must be served on both the intended defendant and the defendant’s insurance company. All pre-action letters should reference the Pre-action Protocols Directions, the consequences of non-compliance with the pre-action protocol together with the provision of a full copy of the Pre-action Protocols Practice Directions and the Defence Form as applicable to the circumstance. Additionally, the pre-action letter should contain an indication of a suggested dispute resolution method that the claimant may utilise, if any.

A claimant’s letter for a monetary sum must reference the amount allegedly due and owing and indicate whether interest is being claimed and the basis for the same. For personal injury matters and motor vehicle accident claims, the selection of an expert by the parties to present expert evidence is a necessary part of the pre-action process. For defamation claims, a copy or transcript of the defamatory statement, if available, should be presented by the intended claimant to the intended defendant.

An intended defendant has seven days from receiving a pre-action letter to acknowledge receipt and thereafter is required to respond within:

Alternatively, an intended defendant may request additional time for a response with reasons for needing the same – this is also applicable to the defendant’s insurance company in personal injury and motor vehicle accident claims.

A claimant cannot unreasonably refuse to consent to a requested extension made by a defendant to provide a comprehensive response in the pre-action stage.

A defendant’s response to a pre-action letter must be comprehensive, addressing the issues raised by the claimant, presenting documents, and indicating whether it is minded to use a dispute resolution mechanism.

If a defendant is admitting a monetary claim, the defendant must put forward a payment proposal supported by full particulars of their income.

The only exceptions to the utilisation of the pre-action protocols relate to urgent matters and those where the limitation period is near expiration. However, the latter does not displace the need for potential litigants to give notice that they will be pursuing a claim via any method of communication. In fact, the court may be moved to stay a claim commenced to avoid expiration of the limitation period to allow the pre-action procedure to be undertaken.

Pre-action protocol letters and responses must be personally served unless the parties agree to another method of service, for example, electronic mail or service on a legal practitioner. If a potential claim is for relief under the Constitution, the Attorney General must be served with the pre-action protocol letter.