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Pre-Action Procedures Explained

Many clients come to us with instructions to “issue proceedings.” However, what many people are not aware of is that court proceedings should always be a last resort.

The courts encourage parties to communicate and have set out guidelines on the steps that parties should take before resorting to court proceedings. These are contained in the Civil Procedure Rules 1998 (CPR).

Civil Procedure Rules 1998

Before the Civil Procedure Rules, litigation was lengthy and costly. The rules were designed to improve access to justice by making legal proceedings cheaper, quicker and easier to understand for clients. They start by setting out the ‘Overriding Objective’, which is defined as enabling the court to deal with cases justly and fairly.

Pre-Action Protocols

The CPR introduced Pre-Action Protocols to set out guidance and the steps the parties should take to try and narrow the issues in dispute before issuing proceedings. There are specific Pre-Action Protocols for different types of claim but if none of them apply then there is a general protocol that the parties should follow: the Practice Direction on Pre-Action Conduct. This entails setting out the claim in full to the other side, who then have a set period of time to respond to the allegations and raise any counter arguments.

It is for the person bringing the claim (the claimant) to provide evidence in support of their claim. However, there is still an obligation on the other side (the defendant) to provide information and evidence as to why the claim is disputed. The idea is that parties should act in a reasonable and proportionate manner in all dealings with one another to ensure that costs are not incurred unnecessarily. The court has the power to impose penalties against a party who does not comply.

Letter of claim

The letter of claim sets out the basis of the claim, why the claimant thinks the other side has done something wrong and what they want from the claim. It is also an opportunity to list any documents the claimant will be seeking to rely on and request disclosure of specific documents from the other side. Further details of what the letter of claim should contain can be found in Annex A of the protocol.

The other side has 14 days to acknowledge the letter of claim and then a total of 30 days to respond to the allegations, although this will vary depending on the complexity and nature of the dispute. Even after the 30-day period has expired, it does not automatically mean that the claim is ready for an action to be commenced at court.

There are several possible scenarios that could arise, the most common ones being that the other side:

1. Requests more time to respond in full;
2. Replies in full denying liability;
3. Replies with full settlement;
4. Replies with an offer of settlement;
5. Does not reply.

If the other side requests an extension of time, then – assuming the period is reasonable – the claimant should consent. It is better to know the other side’s defence in detail at this early stage, so that there are no surprises along the way that may jeopardise the claim.

If the other side simply denies liability and raises counter arguments, then the claimant should respond: this may be an opportunity to narrow down the issues in dispute. If, after a few letters, it is clear that the parties have reached an impasse then it may be appropriate to issue proceedings. If either party raises questions, it would not be reasonable to issue proceedings until these concerns have been addressed.

Settling a claim

If the letter of claim is clear and well drafted then it may be very effective and result in full settlement at this stage, and would be an end to the dispute. Alternatively, the other side may make an offer to settle the claim, which is a positive step in negotiating, even if the amount offered is not initially acceptable.

If the other side does not reply to the letter of claim, it would be sensible to send a follow-up letter to ensure that the other side has received it and to demonstrate that the claimant has acted reasonably.

ADR

If the parties have engaged in correspondence and are still unable to reach a settlement, there are still alternatives to court that may be appropriate. Mediation is a common and effective type of alternative dispute resolution (ADR), a without-prejudice meeting with an impartial person, the mediator, trying to bring the parties together and find some common ground. Although ADR is not compulsory, the parties should consider whether some form of this procedure might enable them to settle the matter without starting court proceedings. The court may require evidence that the parties considered some form of ADR at some point in the litigation, when it comes to deciding the matter of costs.

The emphasis throughout the Protocol is placed on co-operation and early exchange of information, to identify the main issues. Failure by any party to co-operate and comply with the protocol may lead to cost penalties, even for the party that goes on to win the case.

Such an open and frank approach should focus upon the issues that are in dispute and allow the parties to negotiate and try to reach settlement. If settlement is not possible, it will at least narrow the issues and ensure that the case is clear and concise at the point of issuing proceedings.

In conclusion, parties should be aware that starting proceedings should usually be a last resort, and they should not normally be started when a settlement is still actively being explored.

For more information on any of the issues raised in this article, please contact fmcwilliams@lyonsdavidson.co.uk

Posted on Dec 12th, 2012 by Lyons Davidson