Pre-action Conduct

Our commercial litigation solicitors are known for their work on high-value commercial litigation work. They secure good results for clients both through negotiation and litigation.

They have drawn on their knowledge to provide some tips on how to approach emails and conversations when a dispute begins to brew. It is important to keep things in check and not rise to provocation by the other side.

1. What is pre-action correspondence?

Pre-action correspondence is a legal term that refers generally to all emails, conversations and discussions between two businesses or people who are in a dispute, before a claim is issued. The "action" is effectively starting a claim at court. It might include all previous correspondence between two parties, and may not need to relate purely to the most recent dispute. It might include off-the-cuff conversations from potentially many years ago.

2. What is pre-action conduct?

Pre-action conduct is a bit abstract, but is effectively investigation how both sides have behaved and dealt with the dispute before issuing a claim. If a party is considered to be very unreasonable or overly war-mongering by the court, and if it has sued the other side too early, the court may penalise that party later on in costs and criticise it openly at trial.

3. Why is pre-action correspondence / conduct important?

Everything that has happened prior to a claim at court, can usually be referred to and examined by the court later on. The court might use this information to prevent one side from recovering their legal costs in extreme cases. Correspondence might also paint a picture to the judge and the barristers what the parties are like, and might give the other side material to use against a difficult party later on. In extreme cases, the case might be entirely lost, purely on what can be demonstrated in pre-action interaction.

4. What steps can I take to protect my interests?

There are several ways you can do so. Taking legal advice can help greatly. It helps, in commercial disputes, to stay objective, to use reason and logic, and not rise to provocation. It helps to respond to issues constructively as far as possible and in good time. It helps to communicate regularly and might help, if you can see an issue is likely to arise, to draw this in good time to the other side's attention, when the issue is likely to be the other side's problem. It helps to think "would someone think less of me if they read it later", and "does this help my position or work against me?".

5. If I have sent a damaging email, what can I do?

During a dispute, you might have sent an email that is not professional or that admits something you later wish you hadn't admitted. Regrettably, both parties have to disclose all documents during litigation whether they help your position or go against you. If you send something damaging "pre-action", it might well be too late to take it back. There are certain tools in law you can use to help against this, such as "without prejudice" discussions which are effectively off the record, and can be used to explore more sensitive areas in dispute. You can steer dialogues pro-actively in a way where you do not say things that could work against you. Legal advice can help you in this respect.

6. What if the other side have told me things off the record which I can use

If the other side tells you something off the record on a "without prejudice" basis, it is generally not possible to refer to it in court proceedings later on. There are some exceptions to this however, for example if the other side is using it to try and hide blackmail attempts, if the court needs to correct a mistake in off the record settlement agreements, and if a party needs to prove they have taken sufficient action to lower their losses, but this can only be evidenced in without prejudice correspondence. The court can intervene potentially.

7. What if the other side are refusing to give me a key document

If the other side are refusing to give you a key document without justification, it is likely that it damages their position. To get round this, it is possible to make a formal application to court "pre-action" to formally demand sight of the document, and the courts may agree especially where doing so is likely to avoid the need for a court hearing. There are ways of adding leverage "pre-action" in law. Legal advice can assist.

8. When is best to get expert evidence?

Different types of court cases require different approaches to expert evidence, and some require it "pre-action". For example negligence claims against surveyors or architects require more involved investigation prior to starting a claim, than for example, straight forward debt claims. It is often sensible in complex and technical claims to get early expert evidence. However, the approach differs from case to case, so legal advice is sensible.

9. When should I issue a court claim?

The court sets out guidelines or "protocols" for different types of cases you have to follow before you can start a claim. There are formal steps you need to take, such as sending a formal letter. It is not always clear which protocol is correct, so legal advice assists. If you fail to follow the protocols, the court might penalise you later on. You should also exhaust negotiation and attempts to settle before doing so. Legal advice can assist.

10. Can I recover costs of involving lawyers in pre-action discussions?

The general position is that you are entitled to recover costs dealing with issues which are pursued during the claim and which are proportionate to the dispute if you win at trial. If pre-action costs are dis-proportionate, the court may not permit them even if you win. If a case settles before litigation is started, the court will not award any particular pre-action costs, and these have to be factored into settlements. For claims less than lb10,000, costs are generally not recoverable even if you win. In short, providing the costs are reasonable, proportionate and relate to issues genuinely tried at court, and are not expressly excluded, you ought to be able to recover a proportion of them. If the use of lawyers in pre-action negotiation results in early settlement, this may still save you a lot of money rather than fighting things out.

At Saunders Law, we're dedicated litigators with vast experience assisting clients to resolve their commercial disputes. We're well-known for our high-profile work and excellent client satisfaction. Operating from offices facing the High Court in central London, we're also ideally located to handle commercial litigation and assist with pre-action negotiation. For a free, no-obligation, initial discussion of how we may be able to help, please contact us on 02076324300.