CIVIL COURT RULES
Pre action protocols under SA’s new Uniform Civil Court Rules MARGARET CASTLES, MICHELLE HAMLYN & SHAVIN SILVA, CIVIL LITIGATION COMMITTEE
T
he Uniform Civil Court Rules introduced in all SA civil court jurisdictions in SA in April 2020 revised the requirements for parties to engage in pre action negotiations before issuing proceedings. The new rules apply to all types of civil claims above the Magistrates Court Minor Civil jurisdiction. This article provides an overview of the key provisions.
SUMMARY AND OVERVIEW Although the new rules reflect the regime under old rule 33, and the practice directions applying to medical negligence claims, they go significantly further, both in specifying the nature and rationale for offers, requiring a pre action meeting, and the exchange of all relevant experts reports (not just those favourable to a party). The intent of the protocols is to equip the parties with as much cogent information as possible to enable them to make informed decisions about compromise before commencing litigation. The new rules provide greater scope for judicial enforcement of the pre action protocols, including immediate cost consequences for non-compliance (61.14(4), (5) and (6)), and for costs payable forthwith, on an indemnity basis. The requirement for reasoned explanation of claims, coupled with the exchange of expert and other relevant material, goes some way to avert the concern of lawyers that serious settlement discussions can’t occur until pleadings are exchanged and discovery is completed. There is a perception that these requirements demand front loading in litigation by requiring parties to carefully justify their claims both legally and factually and gather some evidence to support their position. In fact, in the majority of claims this preparation would be done in the normal course of determining if the claim is worth pursuing, and all that is required is for the parties to exchange this information with each other early, rather than waiting for the progress
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of a case through pleadings and discovery to do so.
• Identify any other medical records held by other providers
INFORMATION FOR APPLICANTS: PRE ACTION CLAIM REQUIREMENTS
TIME LIMIT TO ISSUE PRE ACTION CLAIM OF CLAIM
General claims Applicants planning to initiate a claim must provide a pre action claim to the respondent. UCCR 61.7 requires the pre action claim to: • Identify each cause of action in detail • If the claim is a liquidated sum, explain how the sum is calculated and breakdown the calculation of damages • Attach any expert report relevant to the claim • Provide sufficient material to enable the respondent to make an informed response • Provide indication of anticipated costs if the matter goes to trial (Form P3) • Make an offer to settle • Propose a date and time for a pre action meeting to negotiate the claim.
There are specific time limits for every step in the pre action claim regime, except for issuing the original pre action claim itself. An applicant should issue the claim sufficiently in advance of the expiration of the limitation period OR the proposed date of issue to enable all the timed pre action steps to be completed before issuing proceedings. In the case of general claims this is at least 42 days, in the case of personal injury claims, at least 51 days. If third parties are likely to be involved, or counter claims raised, the time limit could extend out to at least 63 days for a general claim and 81 days for a personal injury claim. Applicants would be prudent to issue the pre action claim sufficiently in advance of the expiration of the limitation period to cover these eventualities. Additional requirement: early claim of personal injury including medical negligence UCCR 61.6 requires claim of an injury to be given within six months of the injury occurring, or, if the person becomes aware of having suffered a personal injury after six months, within one month of becoming aware. Claims must be in writing and consist of: • Names of all potential parties • Details of when where and how the injury occurred • Specifying the reasons for liability • Identifying any medical records that the applicant requires from the other party. The other party must provide in response: • Address for pre action service • Copy of any medical records requested • For a medical negligence claim, explain why liability is denied including any alternative explanation for the perceived injury
Personal injury claims Additional details are required for personal injury claims (UCCR 61(7)): • Provide personal details (DOB and occupation) • Explain the conduct of the respondent that caused the injury, including date and occasion and reason the conduct was negligent • Outline any ongoing medical treatment Personal injury medical negligence claims If the personal injuries claim is a medical negligence claim, the applicant must also: • Identify the adverse effects of the alleged negligent conduct and the applicant’s current condition • Explain the causal link between the negligent conduct and the adverse effects, including stating the outcome had the negligent conduct not occurred • Identify medical records that the applicant seeks from the respondent
