INTRODUCTION TO THE PRE-ACTION STAGE

The ‘pre-action phase’ covers the period from the occurrence of the contested issue or relevant ground for complaint to when that matter produces formal civil proceedings. Such fees are prohibited in respect of personal injury claims. Compliance with this ban will be monitored by relevant regulators.

When the period of prescription (or ‘limitation of actions’) is generous, the pre-litigation phase will not be short: for example, six years for ordinary contractual claims, or even twelve years if the contract is contained in a formal ‘deed’. Perhaps no other subject so vividly reflects the scope for national difference than the fixing of periods of prescription.

PHASE 1: PRE-ACTION PROTOCOLS

The CPR (1998) system introduced an important set of ‘pre-action protocols’. As explained in Andrews (2007), a leading aim of the English scheme of pre-action protocols is to promote early and informed settlement, avoiding the expense and inconvenience of formal litigation. This is rooted in the philosophy that formal litigation, notably trial, is a form of dispute resolution which should be treated as a matter of ‘last resort’.

All civil disputes which are headed for the English courts must comply with this elaborate system of pre-action protocols. They govern the prospective parties’ steps in preparing for commencement of proceedings.

For the purpose of the English civil process, phase (1), the pre-action stage, is the first stage of the civil dispute in the following respects: (i) it forms part of a series of segments; (ii) it is regulated by the CPR system of rules; (iii) this regime of pre-action regulations applies to all prospective claims within England and Wales; and (iv) there are sanctions applicable if a prospective party fails to comply with the pre-action set of rules.

This pre-action regime requires prospective parties, in particular: (i) to communicate among themselves the nature of the claim and defence in advance of commencement of proceedings; (ii) to consider opportunities for settlement and resort to ADR, notably mediation (although the latter is not compulsory); and (iii) to make appropriate exchanges of relevant information, including central documents relevant to the case. It follows that in a large and complicated dispute the parties will be engaged in compliance with these requirements for many months.