The Courts expect parties to take all reasonable steps to settle the dispute out of court and to avoid bringing court proceedings unless they are absolutely necessary with no other alternative.
Under the Pre-action Protocols, the parties are obligated to consider alternative dispute resolution (‘ADR’)
Where parties fail to follow a pre-action protocol or utilise any of the various methods of ADR, they may be penalised in costs – even if they win.
However, on occasion, Court action as a last resort is the only option.
Your solicitor will advise you separately on the pre-action protocols and ADR.
Should the need for court proceedings arise, your additional obligations are absolute. Failure to comply with these obligations may mean we must stop acting for you.
If you are or are likely to be a party to court proceedings, you have legal obligations, regardless of if formal procedures or court proceedings have already started. The Civil Procedure Rules dictate these obligations.
The rules impose duties to search for, retain, preserve, and disclose all documents or copy documents in your control, including electronic records (including email, text data and electronic messages) directly or indirectly relevant to your case or that of your opponent or likely opponent. These may be documents that you intend to rely upon or may be adverse to your case or the case of your opponent or likely opponent or even supportive of your opponent’s case.
Documents are in your control whether or not they are or were physically in your possession or you have or had a right to their possession to inspect or take copies of them. For example, you may have passed or sent documents or copy documents to an agent, sub-contractor, bank or other party or organisation. You may also have received documents or copy documents from another party. If they are or could be relevant to your case, the duties apply, and you must retain and not dispose of them and make them available for inspection.
In the case of electronic data, you must not delete it from your computer(s), server(s) or any other storage (including hand-held) device(s).
In the case of disputes that do not go to court or have to be resolved by other procedures, such as arbitration, adjudication, tribunal or mediation, you should apply the same principles.
All parties to court proceedings have a duty not to mislead the court. If your case does involve court proceedings, then you will be required to sign certain documents that contain a ‘statement of truth’ (for example, a witness statement), or it may be necessary for you to authorise us to sign such documents for you (for example, a Claim Form).
It is contempt of court for any party to court proceedings (or their legal advisers) to sign a statement of truth without an honest belief that the contents are true or where they are reckless as to whether the contents are true or not.
In any matter that involves, or potentially involves, court proceedings, you must provide us with truthful and accurate information about your case. In the cases we deal with, the evidence you need to prove your claim is generally in your possession or within your knowledge. In assessing your case’s merits and advising you about it, we depend entirely on you to provide us with accurate and truthful information (whether by witness evidence or documentation).
If you provide us with inaccurate, untruthful or misleading information (either deliberately or through want of care or recklessness), then we cannot properly assess the merits of your case and gives presents a real risk that we will provide inaccurate, untruthful or misleading information to the court.
Solicitors are, first and foremost, officers of the court and have obligations to ensure that the court or another party to a case is provided with accurate information. We rely on you to help us fulfil those obligations.
In the case of disputes that do not go to court or have to be resolved by other procedures, such as arbitration, adjudication, tribunal or mediation, you should apply the same principles.
If a court finds that in relation to misconduct in court proceedings, you are either wholly or partly responsible (including but not limited to contempt of court), you may be ordered to pay costs.
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