Nipping it in the bud - Effective pre-dispute management

By Jonathan Speed, Jack Colthurst


Bird & Bird & First for Disputes 

The effective management of the early stages of any dispute is critical to its resolution. From the earliest preparatory stages, through compliance with the pre-action protocols under the Civil Procedure Rules ('CPR'), pre-action applications, settlement discussions and beyond, Jonathan Speed and Jack Colthurst will be discussing the strategies that a party can deploy and practical steps to follow to ensure that a blossoming dispute is 'nipped in the bud' on the best possible terms

Preliminary Considerations

Careful consideration of a party's commercial objectives in a dispute is the essential first step, and objectives are often more sophisticated and subtle than a simple desire to recover money that is owed. A party often needs a binding precedent above all else, and will pursue a claim in circumstances that otherwise would seem surprising in order to obtain it, whereas others simply need to 'send a message' to their opponents or competitors

Once it has resolved to either pursue or defend a potential claim, a party proceeds through the early stages of evidence gathering, preparing the business for what is to come, and may seek an early merits assessment. Even once a claim is deemed viable in principle, there are a number of core issues to consider including  the issue of jurisdiction, where its opponents' assets are located, and where (and how) it is likely to be able to enforce a favourable judgment if it obtains one        

Pre-Action Conduct and Applications

Before bringing its claim, a party should comply with the requirements of the Practice Direction on Pre-Action Conduct ('PDPAC') or  any other relevant pre-action protocol under the CPR. In our seminar, we will consider the specific steps that a party must take to comply with the PDPAC, as well as the rare circumstances in which it is permitted to defer them.

A party may also  seek to make certain pre-action applications to obtain further information or to strengthen its hand, including for pre-action disclosure, or a Norwich Pharmacal Order. We will consider the threshold tests that must be met in order to obtain such orders, their usual costs consequences, and strategic considerations surrounding their use.

Settlement Negotiations and 'Pressing the Button'

In considering settlement, we will review the key concepts surrounding 'without prejudice' privilege and 'subject to contract' negotiations, before exploring ADR techniques, and the strategies that parties typically deploy to bring their opponent to the negotiating table, in order to achieve a binding commercial settlement.

Finally, we will review the final steps and preparation that a party must prepare to take and key considerations once all else has failed, as it prepares to 'press the button' and commence litigation.      

What this means for you?

In our breakfast seminar on 20 September 2017, we will be considering the various legal, strategic and practical issues that a party must consider when managing the early stages of a dispute, in order to achieve a favourable early settlement or to best position its case for proceedings should they be necessary. If you would like to attend, please click here to request an invitation.