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Civil Litigation Section

Changes to the practice direction on pre-action conduct

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On 6 April 2015, the changes relating to the practice direction (PD) on pre-action conduct were brought into force. Although the PD has not been completely overhauled, there are some important changes that litigators should be aware of.

Aim

The aim of the PD remains largely unchanged, although a number of additional aims have been included, which are highlighted in bold below.

The aim of the amended Practice Direction is to enable parties 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.”

Proportionality

In a nod to post-Mitchell litigation, where parties routinely took tactical points based on failures to comply with the Civil Procedure Rules (CPR) and pre-action protocols, the PD specifically states:

“A pre-action protocol or this Practice Direction must not be used by a party as a tactical device to secure an unfair advantage over another party. Only reasonable and proportionate steps should be taken by the parties to narrow and resolve the legal, factual or expert issues.”

It also expressly outlines that “the costs incurred in complying with a pre-action protocol or this Practice Direction should be proportionate”. Disproportionate costs will not be recovered.

Settlement and ADR

The amended PD places even more emphasis on ADR.

It expressly states that a party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court, and could lead to the court ordering the party to pay additional costs.

Ombudsmen schemes are now outlined as one of the ways parties may settle disputes.

It reminds parties that part 36 offers can be made before proceedings are issued.

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