Have you ever been involved in a dispute, worried to take matters further and unsure about going to see a solicitor for advice?
You hope matters sort themselves out, bury your head in the sand but unfortunately matters do not resolve.
This can be extremely upsetting but you always need to be aware once your dispute has started, your conduct and the other parties can be taken into account by a court, if the matter settles in a court case.
“Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of Alternate Dispute Resolution (“ADR”) might enable them to settle their dispute without commencing proceedings.”
The above quote is taken directly from the Practice Direction – Pre-action Conduct and Protocols. These Protocols run alongside the Civil Procedure Rules and dictate how parties involved in litigation should conduct their litigation at various stages, i.e. pre-issue (before going to court), on issue (starting the court proceedings) and during the court process and trial right up until Judgment is obtained.
As dispute resolution solicitors specialising in litigation claims we understand when we are instructed by you something has gone seriously wrong, otherwise we would not be needed.
Understandably, your emotions are often running high and if you are the aggrieved party we want to see swift justice. However, this desire for swift justice can lead to a breakdown in communication between you and your opponent and fosters an unwillingness to engage in negotiations.
As potential litigants the Court expects you and your opponent to have complied with the Pre-action Protocols by attempting to negotiate settlement or considering some form of ADR before any claim is issued. Some common forms of ADR include mediation, arbitration, conciliation, expert determination, etc.
Failing to follow the Pre-action Protocols will not prevent you from bringing your claim before the Court, however, there can be very serious consequences for failing to comply with the Pre-action Protocols, usually those consequences are costs based.
In the most serious cases where you or your opponent have failed to follow the Pre-action Protocols the Court has the power to order the party at fault to pay the costs of the proceedings. Needless to say this can be extremely expensive.
It is always our advice to comply with the relevant Pre-action Protocols. Whilst this may delay justice it will ensure your position is protected in the claim. Where possible we will always try to encourage early settlement or ADR, and will continue to do so throughout your case.
More information for the Practice Direction – Pre-action Conduct and Protocols can be found using the following link:
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct
If you are considering bringing a claim please get in touch with a member of our Dispute Resolution Team by calling us on 01756 799000 or emailing us at: