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The pre-litgation process 

The Courts are creaking; there are too few administrators, there are too few judges, there are too many litigants in person who cannot afford to pay lawyers, and there are too many steps taken by lawyers (some required, some not) that waste the Court’s time and there is constant constraint on the nation’s budget for the Courts.

So the Courts and judges want to make sure that only the cases that absolutely have to go to Court, do so.

There are several ways they do this:

  1. Protocols

Many types of cases coming before the Courts are subject to pre-litigation rules that try and make sure that before parties get to Court they are clear about what they are arguing about. It is important they have time to either settle the case or at least limit the arguments to the issues that the parties are really bothered about.

This is done by exchange of details of respected parties’ cases, by disclosure of key documents and by encouragement to enter into alternatives to resolving disputes by litigation (Alternative Dispute Resolution – ADR).

Ignoring the protocol is likely to result in penalties being imposed by the judge, as they will have to decide if the case(s) should have been settled by ADR much earlier.

  1. ADR

There is no mystique to this phrase. It could be as simple as picking up the phone and talking to your opponent plainly ‘without prejudice‘. There must have been a time you once got on with them!

Alternatively, you could make an offer to settle the claim you are involved in (a Part 36 Offer or a wider one colloquially called a ‘Calder Bank Offer’) to settle the claim and other issues between you and your opponent which have been bubbling and are not directly part of the claim.

Other common means short of the formal Court procedure to settle matters, are adjudications in construction, arbitration (perhaps simply described as litigation decided without witness evidence by an arbitrator specialist in the arbitrated fields – usually commodities or insurance).

Another good way to kill the dispute is to pay what it is likely to be found to be owing saving your fire power for the best parts of your case.

But by far the most common and effective way of resolving a case by ADR is mediation.

  1. Mediation 

In some ways the mediator is an honest broker. The parties usually meet for one day and exchange their differing positions.

The mediator facilitates the parties coming together by pointing out respective strengths and weaknesses and bringing objectivity on views of the claim from each party.

Worst and best case scenarios are compared and ideally, in successful mediation a contractual agreement is reached which settles the dispute, or settles the framework if steps need to be taken to pave the way to settlement.

The deal is usually one both parties can live with, and because concessions invariably have to be made, few people in mediation are truly pleased with the result. But this is probably also true of trial.

Mediation is usually a lot cheaper than litigation.

Perhaps most importantly, parties refusing for no good reason to mediate are likely to be penalised in legal costs by the Courts. Increasingly, the Courts require an explanation from a party for their refusal to mediate.

So, if you have been through the risk management process, you have observed the ground rules and you have been through the pre-action procedure and you have decided you have no option but to litigate, then look out for part four of our litigation guide ‘making litigation cheaper’ which will be published next week.

You can find part one and two of our making litigation cheaper posts by clicking on the links below.

Part one – Advance risk management 

Part two – A few home truths and engaging your solicitor


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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.