Top Ten Tips- The Pre -Action Stage of Litigation

The Pre-action stage of litigation refers to the period of time when a party is involved in a legal dispute, but court proceedings have not yet been issued. This post is a whistle stop tour of the points you should consider before you issue proceedings.  Some of them may seem like common sense and the truth is that some of them are. One key point to be aware of is the weight applied by the courts to any failure to comply with the Pre- Action Protocols.

The Pre-action Protocols set out the conduct and steps the court would normally expect parties to take for particular types of civil claims before commencing proceedings. The Protocols are annexed to the Civil Procedure Rules (CPR) which is a set of rules that govern the process of court proceedings.

There are currently 17 Pre-action Protocols which apply to specific types of legal disputes. For example, there are specific Protocols for Construction and Engineering Disputes, Debt Claims and Professional Negligence claims. If your dispute is not covered by one of these 17 Protocols, then the General Pre-Action Conduct and Protocols will apply.

The purpose of having these Protocols is to provide the parties to a dispute with guidelines to ensure that prior to issuing court proceedings they have exchanged enough information to allow them to:

Whilst the specific steps that must be taken under the different Protocols differ between one another, they generally follow the same process:

The consequences of non-compliance with a Pre-action Protocol are as follows:

1- Advice on merits, evidence and witnesses – seek legal advice on your claim to assess whether or not you have a claim that can be brought in the courts – do you have a valid cause of action?  In order to get the most out of your consultation with your solicitor; collate key items of evidence (documentary and electronic) and consider who you might call as a witness.

2- DO NOT destroy any evidence – If you have any processes where you wipe out CCTV or any other computer or electronic records – as soon as litigation is contemplated; these processes should be suspended.  

3- Understand Costs and Funding – What will it cost you to run the case to trial and does the other side have the funds to pay you out if you win? Can the other side pay the sum you win as well as your legal costs? What if they bring a counterclaim? Will you be able to fund the legal costs of defending that? Will you be in a position to pay the other side’s costs if your claim is unsuccessful? Firstly, you should check whether you have litigation insurance available already. If not, you may wish to consider After-The-Event Insurance or Litigation Funding. A future post will deal with this in detail but if you have positive advice from Counsel you might want to consider approaching an insurance broker to obtain quotes. Remember though, this may be an extra cost out of your damages at the conclusion of the matter.

4- Pre-Action Protocol – Know which one applies to your claim and comply with it. Be mindful of your conduct and the consequences if you do not comply. 

5- Is your claim within the Limitation Period? There are time limits for issuing claims which are set out in the Limitation Act 1980. If you are outside the time limit your claim may be barred. For example, the limitation period for a simple contractual claim or a tortious claim is six years. Where an agreement has been executed as a deed, the limitation period increases to 12 years.  A claim for defamation must be brought within one year of the alleged defamatory act.

6- Standstill agreements – Where limitation is an issue and/or due to expire during the timeframe set out in the Protocols, seek a standstill agreement with the other party to allow time to complete the steps required under the Pre-Action Protocol. Where the other party does not agree to a standstill, proceedings can be issued, and a stay sought from the court.

7- Provide pre-action disclosure – Where you have key documents that would assist in resolving the dispute, consider making voluntary pre-action disclosure.

8- Pre-action expert reports – Where obtaining an expert report would assist to settle a dispute, consider an agreement for the parties to obtain and exchange expert reports before the proceedings are issued. This may be done on a without prejudice basis .

9- Consider early settlement – Litigation is expensive and time consuming. Fully committing to the spirit of the Pre-Action Protocols may result in an early settlement and save you from incurring significant costs and time which could be better used elsewhere. Also , do not overlook the stress and anxiety in being involved in litigation.

10- Narrow the issues in dispute – Where settlement is not possible, it is beneficial to try and agree certain aspects of a dispute before issuing proceedings. If you can narrow the number of issues in a dispute, the subsequent litigation should be less expensive.