Codes of practice for pre-litigation conduct.

The TCC has re-emphasised that parties should not use pre-action protocols to gain a tactical advantage in a dispute. This is particularly so in smaller disputes where it is important for solicitors to be pragmatic in their dealings concerning pre-action protocols.

This Practice Note sets out the scope and aims of the Pre-Action Protocol for Possession Claims by Social Landlords (the Protocol) in force from 13 January 2020, which applies to residential possession claims in England and Wales by social landlords (such as local authorities and housing associations). It also sets out the obligations on the landlord to ensure compliance with the Protocol which include details regarding the initial contact to be made with the tenant, situations when proceedings must not be started and the service of statutory notices. It also deals with the need to consider alternative dispute resolution (ADR), the mandatory grounds for possession and the consequences of a failure to comply with the Protocol. Scope The Protocol applies to residential possession claims in England and Wales by social landlords including: • a local authority, or • a housing association Part 2 relates to claims based solely on rent arrears, while Part 3 relates to claims where the court's discretion to postpone possession is limited and section

This Practice Note considers pre-action conduct in ordinary and commercial civil disputes in Scotland. For guidance on: • pre-action conduct in Scottish personal injury claims, see Practice Note: The Scottish Personal Injury Pre-Action Protocol • other issues to consider before bringing a civil claim in a Scottish court and how to start and progress a civil claim in Scotland, see: Scottish DR: prescription and limitation—overview and Scottish DR: case management and evidence—overview respectively, which link through to more detailed guidance • the closest equivalent procedure in England and Wales, see: Pre-action: general—overview and Pre-action protocols—overview which, in turn, link through to more detailed guidance on various aspects of pre-action conduct in England and Wales Note: this Practice Note does not offer guidance on pre-action requirements in ordinary actions governed in part by statute; for example where a lender wishes to enforce a qualifying standard security under the Conveyancing and Feudal Reform (Scotland) Act 1970 or where a landlord wishes to evict

This Practice Note considers the recovery of costs incurred pre-action. It sets out provisions in the Senior Courts Act 1981 (SCA 1981), CPR 44, pre-action protocols and court guides. It notes the provisions for civil cases that come within the fixed costs regime on or after 1 October 2023. It also notes relevant case law concerning the principles of pre-action costs recovery. Pre-action costs—what are they? Pre-action costs are the costs that a party incurs prior to the commencement of court proceedings. These costs can end up being considerable in amount and can include but are not limited to: • taking instructions from the client and keeping them updated about the progression of the case • having discussions and corresponding with the other side, to include without prejudice discussions and potential settlement negotiations • carrying out investigations in respect of liability and/or quantum and assessing the documentation/evidence available • identifying and speaking to potential witnesses in order to obtain witness evidence in support of the claim or the defence • undertaking work on documents, eg drafting the letter of

This Practice Note provides guidance on the interpretation and application of the relevant provisions of the CPR. Depending on the court in which your matter is proceeding, you may also need to be mindful of additional provisions—see further in the section Court specific guidance below. When can I make an application? The starting point is that an application should be made ‘as soon as it appears necessary or desirable to make it’ (CPR PD 23A, para 2.5). There is no definition of ‘necessary’ or ‘desirable’ in the CPR in this context, but note the following points: • the CPR imposes specific deadlines in respect of certain applications—you should find out whether any such deadline exists as soon as you start to consider making an application—a list of some common applications with specific deadlines can be found below. If the deadline is missed, consideration will need to be made as to the type of application that will need to be made alongside the original application, ie you will usually need to make an application for relief from sanction and/or an extension

An applicant in relevant family proceedings must attend a Mediation Information and Assessment Meeting (MIAM) before making an application to the court. In addition, annexed to FPR 2010, PD 9A is the pre-application protocol for an application for a financial remedy and guidance notes. The protocol provides that the aim of all pre-application proceedings steps should be to assist the parties to resolve their differences speedily and fairly, or at least narrow the issues, and should that not be possible, to assist the court to do so.

This toolkit brings together various resources and documents associated with the pre-application requirements in family proceedings and the requirement to consider non-court dispute resolution (NCDR). It includes signposting to provisions in the Family Procedure Rules 2010 (FPR 2010) and the pre-application protocols which the court expects parties to comply with prior to issuing private law proceedings relating to children under the Children Act 1989 and financial proceedings. It also signposts to Lexis+® UK Practice Notes, precedents, forms and cases available to assist practitioners when considering NCDR. With the aim of increasing mediation information and assessment meeting (MIAM) attendance and the earlier resolution of private law proceedings relating to children and financial remedy proceedings, FPR 2010, SI 2010/2955, Pt 3, together with FPR 2010, PD 3A, were amended by the Family Procedure (Amendment No 2) Rules 2023, SI 2023/1324 and the sixth Practice Direction update of 2023 with effect from 29 April 2024. FPR 2010, SI 2010/2955, Pt 28 was amended as to costs and FPR 2010, PD 5A was amended as to insert

The requirement set out in the FPR 2010, SI 2010/2955, Pt 3 and FPR 2010, PD 3A that applies where a person is considering applying for an order in family proceedings (as specified) to consider whether the dispute is capable of being resolved through mediation.

Arbitration analysis: The Supreme Court of India restored an arbitral award that had been set aside by the lower courts, holding that the jurisdiction of an arbitral tribunal is determined principally by the scope of the arbitration agreement rather than by the disputes identified in the notice commencing arbitration. The court clarified that section 21 of the Arbitration and Conciliation Act 1996 serves a procedural and limitation-related function and is not a jurisdictional precondition to advancing claims before a constituted tribunal. The decision also emphasises that parties may be precluded from relying on procedural non-compliance where their own conduct has frustrated the agreed dispute-resolution process. The judgment provides important guidance on multi-tier dispute resolution clauses, arbitral jurisdiction, limitation strategy, and the conduct of challenges under sections 34 and 37. Produced in partnership with Prasanth Raju of Chambers of Prasanth Raju.

When considering arbitration proceedings, this Checklist can be used as a starting point for effective case and process management: • Conduct a proper case analysis considering: ◦ the facts of the dispute ◦ the legal rights and arguments available to each party • ◦ the applicable law, arbitration agreement and relevant procedural rules ◦ prospects of enforcing any resulting arbitral award, including the location of relevant assets and any potential obstacles to enforcement ◦ the commercial drivers and objectives of each party, ◦ the costs, risks and likely timetable of the arbitration, and • ◦ the desired outcome and any acceptable settlement parameters • Prepare a summary of arguments: ◦ this should be short (for example, one page) ◦ it might be in diagrammatic form, and ◦ even the most complex arguments should ordinarely be capable of concise summary; difficulty in doing so may indicate that the issues or arguments require further analysis • Draft a project management plan including: ◦ the possible methods for achieving the client’s objectives, including arbitration, settlement and other

Restructuring & Insolvency analysis: The Commercial Court struck out Ms Cliff’s professional negligence claim because any pre-bankruptcy cause of action arising from a 2010 transaction vested in her trustee in bankruptcy under the Insolvency Act 1986 (IA 1986) and had not been assigned back to her. The judgment is a practical reminder that bankrupt or former bankrupt claimants cannot pursue vested claims personally without a valid assignment and that courts are unlikely to adjourn proceedings to permit retrospective steps where no extant cause of action is pleaded. The decision also underlines the need to plead a clear factual basis for reliance on section 14A of the Limitation Act 1980 (LA 1980) where primary limitation has expired. Produced in partnership with Amy Halliday, solicitor and Sophie Lewis, trainee solicitor of Addleshaw Goddard LLP.