Pre-commencement

Firstly, the vital point is to identify the client’s objectives, and what the client is really seeking to achieve.

Secondly, it is essential to consider who will constitute all the prospective parties to any negotiations and court proceedings. Once all potential defendants have been identified, consideration must be given to whether each is worth pursuing.

Then, the key task is to collect any relevant evidence, by taking statements from the client and the potential witnesses.

At this stage, it is crucial to inform the client about the legal costs and precisely how are to be calculated and paid for.

It is also fundamental to address the questions of limitation and jurisdiction. For example, if a client is involved in a commercial dispute, it must be checked if the contract provides for any litigation to be conducted in England and Wales or elsewhere.

Coming to the dispute resolution, a client should be aware of the event that litigation is only the last resort. The client must receive a full and frank assessment of the merits of his case and it must be considered with the client what form of dispute resolution would be appropriate.

The steps that parties should take before commencing a court case are governed by pre-action protocols. Indeed, failure to follow a protocol step, will usually incur a sanction for that party if litigation is commenced. It should be highlighted that the Ministry of Justice has approved a number of protocols which set out how parties should behave pre-action in particular types of cases, such as professional negligence claims. In the event that no approved pre-action protocol applies, the parties should follow a Practice Direction on Pre-action Conduct.

Prior to starting proceedings, the parties must give serious consideration to using any suitable form of available Alternative Dispute Resolution (ADR).

Immediately after collecting sufficient evidence to substantiate a realistic claim and before addressing issues of quantum in detail, the potential claimant should send to the proposed defendant a letter detailing the claim. This standard letter before the claim should give to the prospective defendant enough information in order to commence investigations and, at least, put a broad evaluation on the claim, enclosing setting out any proposal he has for ADR.

Finally, the prospective defendant should acknowledge safe receipt of the abovementioned letter of claim and should state whether or not liability is admitted, providing reasons if liability is denied. The potential claimant should also respond to any such allegation before issuing proceedings.

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