Paragraph 6 of the Pre-action Conduct of all proceedings confirms that if a relevant pre-action protocol exists, parties are required to follow it before initiating legal action. This ensures that both sides take certain preliminary steps, such as sharing information and exploring potential settlements, to possibly resolve the dispute without court intervention. If no specific protocol applies, parties should still exchange correspondence and information to meet the objectives of promoting settlement and narrowing the issues in dispute under paragraph 3, while ensuring that the steps taken are proportionate to the case’s complexity and significance.
Under paragraph 6(a), and once the Claimant decides to initiate a legal claim, they are required to send a formal letter to the defendant that provides clear and concise details of the claim. If the defendant has a legal representative, the letter should be addressed to the defendant’s representative. This letter would serve several essential functions within the pre-action protocol.
Firstly, the letter must include the basis on which the claim is made. This means the claimant should specify the legal grounds for their claim, identifying the specific rights or laws that they believe the defendant has breached. By doing so, the claimant ensures that the defendant understands the legal context of the dispute, giving them the right to prepare an appropriate response.
Secondly, the letter should contain a summary of the facts. This summary outlines the relevant events and circumstances leading up to the claim. It provides a narrative of what happened, who was involved, and how the claimant believes the defendant’s actions have resulted in harm or loss. This factual background helps the defendant grasp the situation more clearly while establishing the validity of the claim.
Additionally, the letter should clearly state what the claimant wants from the defendant. This could involve specific actions, such as stopping certain behaviours, rectifying a situation, or providing compensation. If the claim involves a monetary demand, the letter should explain how the amount is calculated. This includes providing a breakdown of the financial losses or damages the claimant has incurred or requested, ensuring transparency and allowing the defendant to understand the financial aspects of the claim.
Paragraphs 6 (b) and (c) further explain that the defendant is expected to respond within a reasonable timeframe. The complexity of the case determines this timeframe: in straightforward cases, the response should be within 14 days, while in very complex cases, it can extend to up to three months. This flexibility ensures that the defendant has sufficient time to gather information and prepare a comprehensive response, depending on the intricacies of the case.
The defendant’s reply should be thorough and informative. It must confirm whether the claim is accepted. If the claim is not accepted, the defendant needs to provide detailed reasons for the rejection. This may include specifying which facts and parts of the claim are disputed. Such detailed responses are crucial for clarifying the areas of disagreement and helping to narrow down the issues that need resolution. Additionally, if the defendant intends to make a counterclaim, they should include this information in their response, providing details and justifications for their counterclaim. This allows both parties to understand the full scope of the dispute and any reciprocal claims involved.
Both parties are also required under paragraph 6(c) to disclose key documents relevant to the issues in dispute. This exchange of information is aimed at facilitating a fair resolution and potentially avoiding the need for protracted litigation. It helps in building a clear and complete picture of the case, allowing for informed decisions and negotiations.
Paragraphs 7 and 8, “Experts” and “Settlement and ADR”, provide additional guidelines for handling legal disputes at early stages, the claimant’s and defendant’s responsibilities, and the exchange of key documents under paragraph 6(c).
Experts
The previous paragraphs outline the need for claimants to provide detailed claims and for defendants to respond thoroughly, including the potential for counterclaims and the disclosure of key documents. Building on this, paragraph 7 highlights the court’s control over the use of expert evidence. Parties must seek the court’s permission before relying on expert findings as a piece of evidence under CPR 35.4(1). This would help prevent unnecessary costs and delays associated with expert evidence, especially in low-value claims where disputes can often be resolved without such evidence. However, if expert advice is deemed necessary in this situation, it is advisable for the parties to jointly instruct a single expert and share the associated costs equally. This collaborative approach can streamline the process and also align with the overarching goal of efficient dispute resolution.
Settlement and ADR
This paragraph, “Settlement and ADR”, encourages the claimant and defendant to explore negotiation or alternative dispute resolution (ADR) methods, such as mediation, arbitration and other methods stated in paragraph 10 to settle disputes amicably before proceeding to court. This approach is not only cost-effective but also time-efficient, fostering a cooperative resolution environment. By considering ADR, parties may achieve mutually satisfactory outcomes without the adversarial nature and expense of litigation.
The above paragraphs promote a structured and cooperative approach to initiating legal disputes. They encourage parties to communicate clearly, exchange necessary information, and consider expert input and ADR mechanisms as ways to resolve issues efficiently and amicably, thereby reducing the burden on the court system and the costs for the parties involved.
This article does not constitute any form of legal advice. It only reflects the writer’s understanding of law and how it operates.