Clare Arthurs & Richard Marshall share an (almost) A-Z guide to pre-action considerations
Alternative dispute resolution
The courts genuinely want and expect parties to settle. Parties will need to prove that they have considered, offered or undertaken a form of ADR.
Be reasonable
The courts will see most of the correspondence, and a measured approach should (in theory) play out better than an unreasonable one.
Costs
Any disproportionate or unnecessary pre-action costs may not be recoverable from the other side.
Documents
What documents might you need to share with the other side at this early stage in order for them to make an informed decision about how to proceed?
Experts
What expert evidence might be needed to support your case or challenge the other side’s? Is it worth getting a preliminary advice to properly assess the strengths and weaknesses of the case?
Funding
Is there an insurance policy in place that might cover the potential litigation? Would ATE insurance be appropriate?
Get specialist advice (if required).
Counsel can prove a useful sounding board when assessing the likelihood of a claim succeeding.
