Good behaviour, litigation style
Once upon a time, the first you would know about a claim against you was in a letter before action… if you were lucky. What a difference seven years makes.
Since 1999, the Civil Procedure Rules have required disputing parties to exchange information before starting a claim in the courts. There are protocols to encourage compliance. Those who do not play nicely face costs sanctions.
The theory is that familiarity breeds settlement: the more you understand about a dispute, the easier it is to settle. Critics say it just front-loads and increases costs.
Here’s our guide to good behaviour:
Try to settle your differences – enter into genuine and reasonable negotiations to settle the claim; court proceedings should be a last resort.
Protect your costs – make a ‘Part 36’ offer before proceedings begin. The other side has 21 days to accept the offer or risk having to pay all your subsequent costs if the offer proves to be better than what the court awards.
Follow protocol – there are currently pre-action protocols setting out the information to be exchanged before proceedings in eight types of dispute: construction and engineering, defamation, personal injury, clinical disputes, professional negligence, disease and illness claims, housing repair and judicial review.
Be reasonable – even if there is no protocol for your dispute, you still have to act reasonably when deciding what relevant information to exchange.
Being reasonable doesn’t mean being weak – don’t automatically give the other side everything they ask for – they have to prove they are entitled to it first. They can’t go on a fishing expedition to find out what you’ve got that can help their case.
You get what you pay for – or, rather, you must pay for what you get so there’s no point asking for several warehouses of documents you don’t need just to mess the other side around.
You may not get costs for everything you disclose – if you address issues raised by the claimant that do not ultimately find their way into the Claim Form, you will not get the costs of providing that information.
Winner takes (nearly) all – as long as you behave yourself, you can recover your
pre-action costs.
Bad behaviour will be punished – when the case is over, the court will take your
pre-action behaviour into account when deciding who pays costs and how much.
This article first appeared in our Litigation Annual Review January 2006. To view this publication, please click here to open a new window.
