Common Practitioner Mistakes in the Pre-Action Stage

Commencing Proceedings Too Early

Issuing proceedings before meaningful correspondence has taken place often increases costs unnecessarily and may attract judicial criticism.

Litigation should ordinarily represent the final step rather than the first response to a dispute.

Treating the Letter of Claim as a Demand Letter

One must keep this in mind that a Letter of Claim is not a merely a request for payment.

It is a procedural document which is intended to identify legal issues as well as express basis for the claim and encourage informed dialogue.

Poorly drafted letters frequently create confusion rather than resolution.

Ignoring Alternative Dispute Resolution

Following Churchill, PGF II, Dunnett and Thakkar, practitioners should no longer regard ADR as optional correspondence to be acknowledged and forgotten.

Failure to engage meaningfully may have significant costs implications even where the refusing party ultimately succeeds at trial.⁸

Overlooking Limitation

Settlement discussions should never distract practitioners from statutory limitation periods.

Where limitation is approaching, consideration should be given to issuing protective proceedings or agreeing an appropriately drafted standstill agreement.

Failing to Consider Proportionality

Excessive pre-action correspondence, unnecessary expert reports and disproportionate investigative work may ultimately prove irrecoverable.

The overriding objective requires parties to adopt procedures proportionate to the value and complexity of the dispute.⁹

Key Takeaways

Pre-Action Protocols represent one of the most significant procedural developments introduced by the Civil Procedure Rules.

Proper compliance is not simply about avoiding procedural sanctions. It provides an opportunity to:

• understand the strengths and weaknesses of the dispute;
• preserve critical evidence;
• identify the real issues requiring determination;
• minimise unnecessary legal costs;
• engage constructively in ADR;
• improve prospects of early settlement; and
• present the court with a dispute that has already been narrowed and properly investigated.

From a practical perspective, the most effective litigators recognise that successful litigation begins long before proceedings are issued.

The quality of the pre-action process frequently determines the efficiency, cost and ultimate outcome of the litigation itself.

As the Court of Appeal's decision in Churchill demonstrates, modern civil justice increasingly expects parties to regard litigation as a measure of last resort rather than the default mechanism for resolving disputes.¹⁰

Disclaimer

In this article, we will deal only with general information on how Pre-Action Protocols work under the Civil Procedure Rules that govern litigation in England and Wales. This does not constitute legal advice and should not be used as a replacement for obtaining the appropriate guidance on the particular facts of any case.

The procedural duties outlined in this article are not exhaustive and should be tailored to the context of the dispute, contractual terms, any applicable Pre-Action Protocol (including consideration of amendments made), changes to or relaxation from parts of Part 36 and subsequent case law. Parties in those or similar circumstances should obtain independent legal advice as early on as possible to ensure that procedural requirements are met, and their position is protected.