Pre-Action Correspondence, a Letter of Claim and the expectations of the Court

The process of litigation is stressful and difficult to navigate, especially if you feel you have been premature in issuing proceedings and are now regretting your decision and the associated costs. It is therefore worthwhile putting the brakes on and taking stock, seeking legal advice, and remembering the overriding objective and expectations of the court.

You must ensure that you have exhausted all pre action attempts to settle any dispute which has arisen, and litigation should always be the last resort. The process will usually be that as soon as communication directly between the parties is no longer possible, and a Letter of Claim (or Letter Before Action) is required, we would be instructed to draft and send to the other party. This will be the first step in ensuring compliance with the expectations of the Court. The Letter of Claim must set out the background to the issues in detail and provide evidence where necessary. It is then an expectation to set out the legal basis for the claim and apply it to the facts of the case. The Court would expect to see a section in the Letter of Claim where you set out a suggested way to resolve the issue and what the next steps will be should the other party not agree.

It is important to remember that a second line of correspondence will be important to show willingness to settle and mitigate your losses depending on the facts of the case. It is usual for this to be conducted on a without prejudice basis. This means that this line of correspondence will be shielded from the Court until the end of proceedings when costs will be considered. Note, the content of this line of correspondence is very specific to enable the attempts to be considered as ‘without prejudice’. It is not the case of simply putting the heading ‘without prejudice’ and thinking this is sufficient to avoid the letter being drawn to the attention of the court, if proceedings were issued. Essentially, the purpose of this will be for the Court to see that you have attempted to resolve the dispute to try and avoid having to have issued Court proceedings. This is also a useful tactic, depending on the decision of the Judge, to show the Court that if the other side had accepted before proceedings had commenced, or even afterwards but before the final hearing, then the unnecessary costs attributed to litigation could have been avoided. You can then use this to try and recover some of your legal costs from the other side.

It is also important to remember that even though two parties may have exhausted all correspondence between themselves and not been able to resolve the dispute, this does not mean that mediation would not be beneficial. A third party acting as a mediator (who is good at what they do), can be a useful asset to resolve a dispute before it gets out of hand and end up with Court proceedings being commenced. If this fails then at least you are able to say that you have tried everything to resolve the dispute and that court action truly was the last resort, which will go in your favour throughout proceedings.

For further information on this process, or if you wish for advice on a dispute and the best way forward, please call the office and ask for me. We can have a brief call at no cost, just to see where you stand.

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