The "reasonable steps" to be taken before commencing
proceedings include the parties:
notifying each other of the issues in dispute
exchanging information and documents "critical" to
the resolution of the dispute
considering options for resolving the dispute, including
negotiation and alternative dispute resolution (ADR).
The meaning of "reasonable steps" is to be understood
as having regard to a person's "situation" and the
nature of the dispute (including the value and/or complexity). This
is aimed at having some proportionality in terms of cost and
Information and documents disclosed by a party are subject to
the same protection as documents exchanged in the course of
Parties are to bear their own costs of complying with the
pre-litigation requirements. The court has the discretion to take
pre-litigation conduct into account when making cost orders
(including against legal practitioners). However, as cost orders
are not generally made/enforceable until the conclusion of
proceedings, the costs of the pre-litigation requirements may
effectively be irrecoverable.
Solicitors have a duty to inform their clients about the
pre-litigation requirements and advise them about alternatives to
the commencement of proceedings including ADR. Insurers and funders
(or any person with a relevant interest in the proceedings) must
not cause a party to be in breach of the requirements.
When commencing proceedings, the plaintiff is to file a dispute
resolution statement specifying the steps taken to resolve or
narrow the issues in dispute or the reasons why no such steps were
taken. A defendant is to file a dispute resolution statement with
their defence as to whether they agree or disagree with the
Certain disputes/proceedings are excluded, for example appeals,
motor accidents and workers compensation claims.
Watch this space
There is provision for the courts to develop
"pre-litigation protocols" which will set out what
constitutes "reasonable steps".
The commencement date of the amendments to the Civil Procedure
Act 2005 has not yet been announced.
The new regime is likely to lead to more extensive
pre-litigation communications between parties than is currently the
case. While the aim of the measures is to enable the parties to
maximise the likelihood of settlement, they will undoubtedly add
another lay of costs to the litigation process.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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