Courts are moving to discourage parties litigating and to resolve matters by other means, with the court being the last resort. England and Wales have mandatory pre-action protocols in specific areas, such as; Personal Injury, Construction and Engineering, Defamation, Professional Negligence, Possession Claims by social landlords or for mortgage arrears. Mandatory pre-action protocols are also in place for debt recovery matters where the debtor is an individual. A full list can be found annexed to the Civil Procedure Rules as a practice direction.
Scotland currently has no mandatory pre-action protocol procedures, but does operate a voluntary scheme in terms of personal injury, professional negligence and disease claims. This may well change with other court reforms in the pipeline.
Following Pre-action Protocol
Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to:-
- understand each other’s position;
- make decisions about how to proceed;
- try to settle the issues without proceedings;
- consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
- ADR may include:
- mediation, a third party facilitating a resolution;
- arbitration, a third party deciding the dispute;
- early neutral evaluation, a third party giving an informed opinion on the dispute;
- Ombudsmen schemes.
- support the efficient management of those proceedings; and
- reduce the costs of resolving the dispute.
A pre-action protocol must not be used by a party as a tactical device to secure an unfair advantage over another party. Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues. The first letter should have concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant/defender, and if money, how the amount is calculated.
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