1.5 - Pre-Action Conduct

Question 1

Objectives of Pre-Action Conduct and Protocols

Answer 1

Paragraph 3 PD Pre-Action Conduct

Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—
(a)
understand each other’s position;
(b)
make decisions about how to proceed;
(c)
try to settle the issues without proceedings;
(d)
consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e)
support the efficient management of those proceedings; and
(f)
reduce the costs of resolving the dispute.

Question 2

Steps before issuing a claim at court

Answer 2

Paragraph 6 PD Pre-Action Conduct

Comply with relevant pre-action protocols.

Where there are no relevant protocols, exchange correspondence and information to proportionately comply with para 3. Steps usually include:
(a)
C writing to D with concise details of claim;
(b)
D responding within a reasonable time (14 days to 3 months depending on circumstances);
(c)
Parties disclosing key documents.

Question 3

Stocktake and list of issues

Answer 3

Paragraph 12 PD Pre-Action Conduct

Where a dispute has not been resolved after the parties have followed a pre-action protocol or this Practice Direction, they should review their respective positions. They should consider the papers and the evidence to see if proceedings can be avoided and at least seek to narrow the issues in dispute before the claimant issues proceedings.

Question 4

Nelson’s Yard Management Company and Others v Eziefula [2013] EWCA Civ 235

Answer 4

Exception to the general rule that C pays D’s costs where C discontinues proceedings: where D has behaved unreasonably pre-action by failing to respond to C’s letter setting out the claim. Breach of paragraph 6 PD Pre-Action Conduct.