Before court action

Before raising an action, advisers should write a formal letter to the defender clearly stating what the problem is and what action on the part of the defender would resolve the dispute. The letter should also give a deadline for any settlement.

If this is not met then it is a good idea to send the defender a follow up letter, referring to the original letter and stating the details of the claim again, but this time stating your intention to take the matter to court if it is not resolved.

If there is no reponse to the follow up letter then the pursuer can take the matter to court if they wish. It is extremely important to keep copies of all letters sent and recieved and all letters should be sent by recorded delivery.

There is no specific stage for negotiations in an action. Negotiations are conducted throughout the case until a settlement is reached or the case comes to court. Advisers should be aware that sometimes the best outcome for a client might not be the one that they had originally wanted. Sometimes the settlement offer achieves more than 'getting a day in court'. Advisers need to be clear as to their instructions and these should be checked at each stage and after any new offer. The client's decision may be affected by a variety of factors including time, cost and stress.

When conducting negotiations aimed at settling a dispute advisers should consider conducting them on a 'without prejudice' basis. This would mean that any correspondence aimed at achieving settlement or containing details of settlement proposals would have as a bare minimum a last paragraph stating that the contents of the letter are written on a 'without prejudice' basis. Such correspondence could not then be referred to or produced in court.

The paragraph could use the following wording:

'This letter is written entirely without prejudice to our client's whole rights and pleas, and may not be founded upon save at her/his instance.'

The point of without prejudice negotiations is that they enable settlement terms to be discussed more freely than would otherwise be possible. It is important to remember that this protection only extends to correspondence aimed at settling the dispute. It will have no effect if applied to any other type of correspondence, all of which will be admissible.

Some types of cases may benefit from other action either before or as an alternative to taking court action. See the pages on Alternative Dispute Resolution for more details.