Pre-action considerations - a practical alphabet (almost)
- Alternative dispute resolution - the courts genuinely want and expect parties to settle. Parties will need to prove that they have considered, offered or undertaken a form of ADR.
- Be reasonable - the courts will see most of the correspondence, and a measured approach should (in theory) play out better than an unreasonable one.
- Costs - any disproportionate or unnecessary pre-action costs may not be recoverable from the other side.
- Documents - what documents might you need to share with the other side at this early stage in order for them to make an informed decision about how to proceed?
- Experts - what expert evidence might be needed to support your case or challenge the other side’s? Is it worth getting preliminary advice to properly assess the strengths and weaknesses of the case?
- Funding - is there an insurance policy in place that might cover the potential litigation? Would ATE insurance be appropriate?
- Get specialist advice (if required) - counsel can prove a useful sounding board when assessing the likelihood of a claim succeeding.
- Halt any document destruction policies - all documents relating to the subject matter of the dispute are potentially disclosable, and courts may draw adverse inferences from documents being destroyed once the dispute has been acknowledged.
- Investigate (in)solvency - is the other side going to be able to fund their litigation, or meet any damages awarded?
- Jurisdiction - is the UK the right forum for this claim? Can you/ will the other side challenge it?
- Keep reviewing - you will need to review and revisit the position regularly and check that you are still on course to meet your agreed objectives.
- Limitation issues - is either side running up against the end of the limitation period for the claim?
- Managing the litigation - who in the party’s team is going to take responsibility for managing the litigation? They will need support and time to do so.
- Negotiate realistically. Either between principals, or via lawyers.
- Objectives - what is the underlying commercial aim? To end a contract? Salvage a relationship?
- Pre-action conduct - cover yourself in glory (and potentially save time and money) by abiding by the pre-action rules.
- Quit the tactical games - don’t play hard ball for the sake of it. The courts have seen it all before and will not necessarily be impressed.
- Reputation management - documents referred to in open court (statements of claim, defence etc) are in the public domain and therefore out of your control. Is this something the business can withstand?
- Sensitive issues - are there any sensitive issues which need careful handling?
- Third party funding may be available, depending on the size, nature and strength of the case.
- Understanding the other side’s case - it can be very hard for the parties to see things from the other side’s perspective, but if they can, it makes it much easier to resolve the issues.
- Value of claim - is the amount at stake really worth the time and energy required to continue the dispute?
- Witnesses - who might need to give evidence? Who might the other side call?
- eXamine the evidence with a critical eye - Where are the strengths and weaknesses? How much evidence is there, and how easy will it be to marshall and share?
- whY? - the key question to come back to. Why is there a dispute? Why won’t the other side give in, or why are they so keen to settle?
- Zzzz - try not to lose (too much) sleep over it all!
This article was published in New Law Journal in July 2015.
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