Home > Breach of Contract > Litigation: A Last Resort

Litigation: A Last Resort

By: Lorna Elliott LLB (hons), Barrister - Updated: 1 May 2018 |
 
Court Cost Litigation Pre-action

The Civil Procedure Rules came into force in April 1999 and govern the way in which civil litigation is carried out in this country. The rules have been amended and developed over the years and there are now approximately fifty amendments. In April 2006, an amendment was made to the effect that litigation always had to be regarded as a weapon of last resort. This means that both parties should make serious efforts to try to settle the dispute before lodging proceedings.

What if I Just go Ahead and Lodge Proceedings?

Failure to be able to demonstrate efforts to avoid litigation can have catastrophic consequences financially. This is why there are ‘pre-action protocols’ that are in place for various types of litigation such as judicial review, professional negligence and housing repair claims against landlords. Even if your type of claim is not governed by one of the pre-action protocols, you are expected to follow a similar procedure in any event.

The Pre-Action Protocols

The pre-action protocols are designed to encourage the early exchange of information about the claim, so that both sides have an opportunity to avoid litigation through settlement. If litigation then becomes unavoidable, you and the other side have exchanged information so that the claim can be managed efficiently once it reaches court.

How to Comply with the Pre-Action Protocols

You should try to negotiate first, and if that fails, sending a pre-action letter. The pre-action letter sets out what is in dispute, what you want done, and the timescale within which you want it completed. You should then give the other side a reasonable period within which to respond (usually fourteen days.) If the response you receive is unsatisfactory, or you receive no response at all, then you can lodge proceedings.

Failing to Try to Settle the Claim Before Litigation

If the other side ask you to mediate with them, or make what the court later deems to be a reasonable settlement, and you decline you can be penalized on costs. The general rule in civil claims is that costs follow the event – i.e. the loser pays the other side’s costs. If, however, you have acted unreasonably in not agreeing to go to mediation or arbitration, the court will more often than not penalize you when it comes to costs. Of course, you don’t have to enter into alternative dispute resolution unless you want to – you can’t be forced into it – but to fail to consider it as an option could have devastating consequences later on.

If your breach of contract claim has got to a stage at which you have tried to resolve it using other methods and have either reached stalemate, or the other side is acting unreasonably, then you are probably at the point at which you can lodge proceedings. A general rule to remember, if you are acting as a litigant in person, is never to fill out a claim form and send it to the court in a fit of rage. You may regret it later on!

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@Mashers - the problem is that you can't take your employer to a tribunal for unfair dismissal until you have been employed for two years :(
Lisa - 3-May-18 @ 3:44 PM
Can you please advise if your contract states the following but after 14 months and never having a performance review to be called in and your contract of employment terminated for not been suitable? Is this breach of contract and is it illegal? 10. PROBATIONARY PERIOD The first 3/6/12 months of your employment are probationary during which time your suitability for employment is assessed and equally you can determine whether you find the work suitable. Your employment may be terminated on one week’s notice given in writing by the Company at any time during or at the end of this probationary period. The Company’s Sick Pay and Disciplinary Policy will not apply to you during your probationary period. The Company reserves the right to extend this period as appropriate.
Mashers - 1-May-18 @ 7:03 PM
@MNAnt - no. You have no rights as you made the decision yourself to move companies. Even though your company may be in financial difficulties, it could still recover financially. Unfortunately it's the gamble we take when we move companies. A probationary period also is put in place to see whether the employer wants you to continue in the job, and whether the job is for you. There are no guarantees in life.
JorgeH - 17-Apr-18 @ 9:24 AM
Hi I was headhunted for a job with a large multinational business. My previous employer made an incredibly generous counter offer.The new employers made a number of comments and promised that the new job would offer loads of opportunities for career progression, and that in their view, even with the generous counter proposal I would be better off with them in the long run. After just 6 months in the new role it is clear that they have significantly misrepresented not only the opportunities but also understated the true extent of financial difficulty the company is in. On challenging my boss I was told that " if I'd told you the whole truth you might never have joined" Would I be able to make a claim for losses incurred (ie the value of the counter offer made by my previous employer)
MNAnt - 16-Apr-18 @ 2:31 PM
On 20th November 17 I booked a holiday with Travel Republic.I booked flights, hotel and transfer for 4 of us, (myself and my 13 yr old daughter and my friend and her elderley father).The hotel for 2 rooms altogether came to just over £500.I got an email confirming my booking straight away and confirming the prices.I paid a deposit if £179 on my credit card. Today (24th Nov) I receive an email from Travel Republic to say they made a pricing error on the hotel and the actual hotel price has gone up to about £2800 from £500.They gave me the option of paying the difference or cancelling and receiving a refund.As there is no way I could afford to pay this sort of money for a holiday I rang them to cancel and get a refund, but to my horror I was told that they would only refund the hotel and not the flgihts or transfers as it was not a package, they just said "pricing errors are all in our terms and conditions"The flights and transfer come to over £1300 which they still expect me to pay, but there are no hotels in my price range now for that destination. Now I fully understand everyone makes mistakes and don't expect them to honour the price they charged as there is such a difference, however, i am horrified that they will not refund the flights and transfer.If the hotel price had been correct when i looked at booking there would have been no way I would have booked the flights as it would have been well out of my price range, i am now being penalised for their mistakes and i felt they mislead me into booking the flights, and will not take any responsibility.I have not paid the balance for the flights yet, but they are due to take a payment of about £1200 from my account on 17/12/17. I have used Travel Republic on several occassions over the last few years and have been a loyal customer. Will this come under the misrepresentation act, as if they had not made a mistake with price of hotel, i would have never booked the flights and transfers Thank you
JLC - 24-Nov-17 @ 8:52 PM
Hi, I have rented private accommodation on a 12 month fixed term assured contract. I am 4 months into the contract and as a result of me requesting repairs and works to be completed the landlady has asked me to leave.The property is part of a main semi detached house that was divided in to two dwellings.I rent one part with 2 beds and a separate family rent the other part with 3 beds.However, the council have now served an enforcement order on the landlady to return the dwellings back to one because she carried out the alterations and conversion even though her planning permission application was refused.She was clearly aware that she was renting me an unlawful dwelling and I wondered if this was covered by the Contracts Act and whether I had a claim against her. My rent is £875/month and my deposit is protected. Thank you.
Ponypal01 - 19-Jul-17 @ 7:44 PM
Farmer - Your Question:
My friend and I were expelled from golf club without any explanation or disciplinary hearing. The proprietor refuses to tell us why she took this action only that she had received 2 letters from ladies that she was fond of threatening to resign ,. My friend was a founder member of the club and past Lady Captain 20 years membership ,I had 13 years membership neither of us had ever had any warnings about our behaviour ,We have done nothing wrong ,we were going to serve on the committee next season and we believe the outgoing committee did not want this to take place The incoming captain wanted us to serve on her committee.We received a cheque for remainder of the years fee the cheque was dated before we had received any letter ,Do we have a case for legal action. We would like to be reinstated

Our Response:
You would have to look at the terms and conditions of your membership to see whether the owner is within their rights to withdraw your membership without notice.
ContractsAndAgreements - 4-Jan-17 @ 2:47 PM
My friend and I were expelled from golf club without any explanation or disciplinary hearing. The proprietor refuses to tell us why she took this action only that she had received2 letters from ladies that she was fond ofthreatening to resign ,. My friend was a founder member of the club and past Lady Captain 20 years membership ,I had 13 years membership neither of us had ever had any warnings about our behaviour ,We have done nothing wrong ,we were going to serve on the committee next season and we believe the outgoing committee did not want this to take place The incoming captain wanted us to serve on her committee .We received a cheque for remainder of the years feethe cheque was dated before we had received any letter ,Do we have a case for legal action. We would like to be reinstated
Farmer - 3-Jan-17 @ 10:05 PM
chuckie - Your Question:
This man approached me and my wife at a flea market and ask us do we wont to buy a very good utility 6x10 trailer it have only one problem right tail light doesn't work ok I was cool with that, about a few we call this man for about a month trying to buy which he wont to sell it to us for 1500 he finally call back two weeks later wonting to meet with the trailer about 2hours drive the arrive at this place the man was no were to be found I called and he said I be their in a few I waited for another hour for him late again call him back its getting late I got to go to work at 11 that night it 7;40 pm he finally showed up this man ask me to pull the trailer from the back of this house to the front which I did by then its 8;00 p he told me could I help him take a few things out of the trailer and he would pay me $20 dollars never got I finish unloading a lot of stuff not a few things its 8;35 I got a two hour drive so I couldn't do my look around that was plan so I made it home at dark 10;15p had to rush to work the trailer was park for about a mount but when I started to used it the trailer would move side to side could figure out the problem, a few weeks later I put my hands on the side of the trailer it was bolted down to the frame the on top of this trailer tape began to peel of the top of the trailer I looked on top tape cover up a hold on the right top it was a few weeks later my phone deleted number out of my phone I couldn't call that man about those problem on that in good condition trailer I payed 1300 dollars for a mouth later the man called me making threats about 300 dollar which I owned him 200 he sold me a piece of crap and he now it know he wont to take me to court for selling junk.

Our Response:
I assume you are from the US, and I'm afraid this is a UK-based site dealing with UK law. However, as a rule private sales are conducted on a 'sold as seen' basis and relies upon the buyer to carry out the checks in order to make sure the item is problem free. Buying a vehicle late at night when the light is bad is never a good idea, as you can't see the bodywork etc. Therefore, unfortunately, you would have no redress.
ContractsAndAgreements - 24-Sep-15 @ 10:57 AM
this man approached me and my wife at a flea market and ask us do we wont to buy a very good utility 6x10 trailerit have only one problem right tail light doesn't work ok I was cool with that, about a few we call this man for about a month trying to buy which he wont to sell it to us for 1500 he finally call back two weeks later wonting to meet with the trailer about 2hours drive the arrive at this place the man was no were to be found I called and he said I be their in a few I waited for another hour for him late again call him back its getting late I got to go to work at 11 that night it 7;40 pm he finally showed up this man ask me to pull the trailer from the back of this house to the front which I did by then its 8;00 p he told me could I help him take a few things out of the trailer and he would pay me $20 dollars never got I finish unloading a lot of stuff not a few things its 8;35 I got a two hour drive so I couldn't do my look around that was plan so I made it home at dark 10;15p had to rush to work the trailer was park for about a mount but when I started to used it the trailer would move side to side could figure out the problem, a few weeks later I put my hands on the side of the trailer it was bolted down to the frame the on top of this trailer tape began to peel of the top of the trailer I looked on top tape cover up a hold on the right top it was a few weeks later my phone deleted number out of my phone I couldn't call that man about those problem on that in good condition trailer I payed 1300 dollars for a mouth later the man called me making threats about 300 dollar which I owned him 200 he sold me a piece of crap and he now it know he wont to take me to court for selling junk.
chuckie - 23-Sep-15 @ 4:40 AM
I bought a leather suite in a sale and the shop can not supply it as they say it was oversold. They said I can pick another one or have my money back. There is only one other suite I would consider, and this only because I would not get another one of the same quality. It's not what I really want. I paid cash and also paid for delivery. It was only after I rang for delivery that they told me they hadn't got it. This was bought in May, and I still haven't gotit sorted. I feel they are giving me the runaround. Can't get speaking to owner, they keep telling me he's out of the country !!! What are my rights please ?
Optimist - 23-Jul-15 @ 6:32 PM
@HHH - in the first instance you should write a letter to the company outlining your complaint and the reasons why you think you have been unfairly treated. I have included an additional CAB link which will explain more about consumer contracts here. If there is no reponse from the company, or you are not satisfied with its reasoning, then I suggest you seek some legal advice in order to see whether you have a case to answer.
ContractsAndAgreements - 10-Jul-15 @ 10:17 AM
Hello, i am a company who sell goods online, i was using a courier company on a daily basis for a year and on a weekly basis from 2012 and booking my parcels online, In brief: the courier company reduced the size of the parcel the would accept which was to become into affect in Mid June, on May 22 i booked parcels and the where reject by the local depot, as the where over the size of there new regulations which where not yet in effect and these items the had previously accepted with out question, when i asked why the could not accept my parcels up to there given deadline my account was closed and it was 7 days before i could set up an account with an alternative courier service, I lost £5000.00 worth of sales for the week i had no service, but i do owe the company £800.00. do you feel the company is in breach of there verbal contract
HHH - 8-Jul-15 @ 1:11 AM
@Charles - you would have to contact an independent legal representative to act on your behalf if you wish to sue a client.
ContractsAndAgreements - 17-Nov-14 @ 12:18 PM
I require your legal services to sue a client, on breaching our agreement as agreed, your acknowledgement would be most appreciated. Yours Sincerely, Charles Bolt
charles bolt - 15-Nov-14 @ 6:54 AM
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