Pre-litigation Requirements

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This topic is within Resolving Civil Disputes.

Contents

Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, [2.360]-[2.380], [2.410]-[2.420].

M. Legg (ed), Future of Dispute Resolution LexisNexis (2013), Chapter 11.

Introduction

[1] Pre-litigation requirements (or 'pre-action protocols) are a series of 'reasonable steps' that should be taken prior to litigation in order to minimise delay and cost, and also, to promote ADRs.

Pre-litigation requirements may vary but include:[2]

  • The need to correspond with the person or entity involved in the dispute
  • Disclosure of information and documentation in relation to the proposed cause of action
  • The potential litigants conducting themselves in a cooperative manner
  • Undertaking some form of alternative dispute resolution usually mediation.

The Attorney General observed:

  • “In fact, of those disputes filed in court, up to 97 per cent are resolved before the final hearing. The reforms will require parties to identify the issues, exchange relevant information and, most importantly, to start talking to one another before they set foot in the courthouse. That not only will increase the chances of early settlement but also should assist the parties to keep the costs of resolution proportionate to the subject matter of the dispute”.

Opposition

There has been considerable opposition to the imposition of pre-litigation requirements. Some of the arguments against the adoption of pre-litigation requirements are summarised as follows:[3]

  • It would be impossible to create a set of pre-litigation requirements that fits every type of claim or case.
  • Pre-litigation requirements might lead to the creation of 'satellite litigation' as to whether parties complied with them or not. This is particularly a problem for vulnerable or unrepresented parties.
  • Pre-litigation requirements will actually raise costs for low-value matteres.

Provisions and Repeal

Pre-litigation provisions were added to the CPA in the form of Part 2A of the CPA, but they were initially suspended until finally repealed completely. The content of that repealed section is summarised below for reference sake (it is not the current law):

  • s 18D of the CPA required each person involved in a civil dispute to comply with the pre-litigation requirements set out in s18E, namely take reasonable steps to resolve or narrow the issues in dispute, prior to commencing civil proceedings. Examples of reasonable steps are included in 18E(2).
  • A failure to comply with the pre-litigation requirements did not prevent a person commencing civil proceedings (s18K) but a court may take non-compliance into account when determining costs or making orders (s18N).
USG notes: since pre-litigation requirements have been repealed and are not in the exam, we have chosen not to provide a fully comprehensive summary to this week's reading.

End

This is the end of this topic. Click here to go back to the main subject page for Resolving Civil Disputes.

References

BKL refers to Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters.

FDR refers to Michael Legg (ed), The Future of Dispute Resolution (2013) LexisNexis.

  1. BKL, 113-115.
  2. Michael Legg and Dorne Boniface, “Pre-action Protocols in Australia” (2010).
  3. Michael Legg and Dorne Boniface, “Pre-action Protocols in Australia” (2010).
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