Asking yourself: “what should I consider before issuing a claim” is a very good question and the answer may not be straightforward, as Lucy Penfold explains:
This article explores some of the different questions you should be asking yourself before jumping into issuing a claim against another person, or company.
1 - Who is the other party?
This is one of the first things to consider if you have a dispute, before you even contact the other side. For example, if your claim is against a company, you should consider whether you ought to sue any of the directors personally at the same time.
Perhaps your claim is against multiple people. Perhaps your claim is against just one person, but they have no money, no job, and no assets, thus you would have no way of enforcing your judgment if you were successful.
You also need to look at where the other party is located. If they are not located in the UK but proceedings must be bought in the UK, you may need to make an application to the court asking permission to serve your claim outside of the jurisdiction.
2 - Do I have good evidence to support a claim?
To bring a claim, you will need to prove you have a claim by relying on evidence. For example, in a breach of contract case, you would be expected to rely on the contract itself, and then prove that a particular clause in the contract has been breached. You would then have to prove your loss, for example, if you have had to pay money to someone else to complete or redo work which they should have done. Loss can be shown by receipts, invoices, quotations etc.
You should calculate exactly what your claim would be. If your claim is to recover loss, can you include loss of profit? Can you add interest? If yes, how much?
Your solicitor should review the documents at the beginning to see if you have a claim, what your claim can be and whether the documents contain any agreements as to how disputes should be resolved.
At this stage, it’s also important to consider any limitation periods.
3 - Have you complied with the pre-action protocols?
You may not be familiar with the pre-action protocols. These are contained in the rules which we all have to follow in any litigation: the Civil Procedure Rules. Pre-action requirements vary depending on what claim you are bringing. In a money claim for example, one of the requirements is to send the other side a letter before commencing proceedings, called a Letter before Claim. The purpose of this is to put the other side on notice that you are contemplating issuing a claim if the issue cannot be resolved, this prompts settlement negotiations and attempts to limit any issues before proceedings are issued.
If you do not comply with the pre-action protocols, you could be penalised by the court when it comes down to the question of costs.
4 - Should you make any pre-action applications or are there any other remedies available?
There may be other interim remedies available, instead of a court claim, via an injunction for example. You may want to consider applying for pre-action disclosure if you consider the other party has key documents relevant to your claim. Or, perhaps there is a reason to believe that the other side will dissipate their money and assets, and therefore not be able to pay the judgment amount; in this situation you could consider a security for costs application.
Importantly, the matter could also be resolved by alternative dispute resolution. Court proceedings should be a last resort. Sometimes settlement negotiations can go on for long periods of time, but sometimes they are necessary to limit the issues involved and reduce the claim.
The above are just some of the questions you should be considering before issuing a claim. It is important to fully understand what is involved in the dispute resolution process, the time and costs involved, and any alternative methods of dispute resolution which may be available to you.
If you have any questions surrounding disputes, stevensdrake can review the documents and assess whether you have a claim, what options are available to you, and whether court proceedings are the correct method of dealing with the dispute.
We ensure we have a suitable case management approach for each individual case, from the outset, and that any surprises which may arise during pre-action conduct, or proceedings themselves, are dealt with efficiently and effectively.
If you would like to speak to our litigation team, please click here