Contacting the Other Party Before a Court Case

Starting a court case is a serious step which should only be taken as a last resort. Anyone considering starting a claim should first satisfy themselves that they have already done everything they reasonably can to settle their dispute. The time and expense involved in a court case can be considerable and there are never any guarantees about the outcome. Making a claim should be done after careful consideration – not in a fit of temper or to “get back” at someone.

Communication

It can be very difficult for two people to communicate properly – especially if both sides are sure that they are in the right. Communication with large organisations can be particularly difficult: having to go through call centres; talking to a different person each time; never getting through to someone who has the power or ability to make a decision based on the individual circumstances of a case. If there is any chance of having a reasonable, polite conversation with the other party – where both sides can explain their position – it may be possible to arrive at a compromise with which everyone is happy. Lawyers often manage to agree the settlement of a case because of their ability to communicate calmly and dispassionately with the other side.

Negotiation

Before starting a claim it may be helpful to consider what is really important about the dispute. What is the best outcome and what would be acceptable? A case might be about a matter of principal or just about getting paid for a job. Try to think about the case from the other side’s point of view – what do they want to get out of it and what do they have to lose if the case goes to court? It may make sense to concede some points in order to achieve what really matters.

Without Prejudice Correspondence

If negotiating with the other side before going to court it is vital to consider how any correspondence could be used by the other party to support their case. A letter or email can easily be put in evidence if a case goes to trial. Parties must be very careful about making concessions – especially about the weakness of their case – which could come back to haunt them in court. Negotiations might seem friendly enough and people may get lulled into a false sense of security.

One way to avoid correspondence being used as evidence is to clearly label it: Without Prejudice. If a letter forms part of a genuine attempt to settle a dispute and is headed “Without Prejudice” it should not subsequently be used by either party at a court hearing. For example, if a claimant had offered to accept a lower amount than they subsequently make a claim for, the other side cannot use the letter as evidence that the claimant’s case is overstated. If a letter is headed Without Prejudice Save as to Costs this means that it should not be used unless and until the court has to make a decision about costs.

For example, a claimant has just won a case based on unpaid invoices. Although the claimant was asking for £8000, the judge will only enter judgment for £4000 because he decided that the amount claimed included unfair charges. During negotiations the defendant had offered to pay £5500 to settle the claim in a letter marked “without prejudice save as to costs”. Therefore, the claimant would have got more if they had accepted the offer. After judgment has been entered the defendant’s lawyer shows the judge the letter. Because of this the judge decides to substantially reduce the costs he would otherwise have allowed the claimant to recover – on the basis that the court proceedings were unnecessary.

Letter Before Action

The final step before starting a claim should be to send the other a side a “letter before action”. This is a letter which gives the other side a last chance to settle the claim before court action is started. It is usual to give the other side a reasonable period to take the required step, such as paying the debt, which is often 7 days. The letter should state that, if payment is not made within the stipulated period, a court case will be started without further warning. (This does not mean that a court case has to be started immediately after the period has ended, or at all.) A cold, calm statement of a settled intention to start a claim may be enough to make the other side, finally, see sense.

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