Pre-action Guidance In Litigation

Once upon a time if someone did you wrong in a civil sense and threats of seeing your opponent in court did not prompt an early settlement, for the innocent party the next obvious step might have been to actually issue a court claim. Times have changed and today a dense framework exists, one that seeks to avoid altogether the need for disgruntled parties to ever go in front of a judge.

In the first instance parties are expected to give proper consideration to detailed guidance set out in the Practice Direction on Pre-Action Conduct - a neat set of rules peppered with the sort of common sense advice that suggests we can be reasonable, businesslike resolvers willing to see sense once a dispute presents itself - if only that were true. In reality, the most reasonable people can find themselves at a loss when the other side won't play ball and so where litigation starts to feel inevitable, sensible pre-action pointers can often play an important role, especially in more complex matters. The basic idea is (i) to promote voluntary disclosure on both sides from the outset, (ii) for the Claimant to make the position unequivocally clear to the Defendant (principally by sending a structured letter before claim), (iii) to give the latter an opportunity to acknowledge the claim, then outline the type of defence that might be employed at a later stage within proceedings, (iv) to force the parties to look at alternative forums in which they can potentially resolve their dispute, for example formal mediation, and finally and perhaps above all, (v) to avoid costs spiralling out of control within a modern litigation landscape where the buzz word is proportionality.

With certain types of case, the pre-action guidance does not stop at the Practice Direction and parties are required to consider whether any relevant Pre-Action Protocol exists. The protocols are tailored to particular areas of law and currently stretch to the following fields of claim:

  • personal injury claims
  • resolution of clinical disputes
  • medical negligence claims
  • low value personal injury claims
  • disease and illness claims
  • professional negligence claims
  • housing disrepair cases
  • mortgage possession claims (residential)
  • rent arrears claims
  • dilapidation claims
  • construction and engineering disputes
  • judicial review
  • defamation claims

The incentive to all this level-headed compliance is obviously saving money on what can be an incredibly expensive journey to trial often loaded with risk for both sides. In the final analysis a judge has discretion to take into account the parties' pre-action conduct and will look specifically at the level of the parties' respective compliance with the Practice Direction and any Pre-Action Protocol.

New protocols seem inevitable (one for debt cases is in the pipeline) which is testament to way they are perceived in the industry and the effect they invariably have on the way litigation is conducted. Their valued place in the process means the current regime will inevitably be held up to continued scrutiny and ongoing review by the Civil Procedure Rules (CPR) committee.

If resolution is not on the cards, by following the Practice Direction or where relevant a protocol, most parties will have acted with a solid degree of commercial reasoning (not to mention common sense) and so should now find themselves in as good a position as any when it comes to forming a realistic view about whether or not a settlement agreement can be reached. In the absence of an agreement, compliant parties are at least more likely to benefit from a solid foundation on which to bring or defend a claim in court.

Where the overriding objective to the CPR is that parties should act in a way that enables the court to deal with the issues both justly and (since April 2013) proportionately, there is little point in winning one's case and expecting the judge to award costs that outweigh the value of the claim. With that in mind, the successful party who can demonstrate compliance in terms of the pre-action guidance should be more likely to recover a greater proportion of costs.

If you need advice about a dispute, avoid delay. By seeking advice early on you can minimise the risks of litigation.

To speak to a member of the Litigation team, please call 01603 620508 or email Litigation@fosters-solicitors.co.uk

For more information on Litigation and Dispute Resolution, including frequently asked questions, please follow this link to the Fosters Litigation page.

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