Last reviewed: September 2026
Start before proceedings are issued
The pre-action stage is not administrative throat-clearing. The Civil Procedure Rules expect parties to exchange enough information to understand each other’s position, make informed decisions, consider settlement and alternative dispute resolution, narrow the issues and reduce cost. A properly framed letter before claim or response can determine whether proceedings are needed at all.
The first strategic questions are usually: what is the legal cause of action or defence, what remedy is actually wanted, what evidence already exists, what evidence is missing, what is the limitation position, what assets or commercial leverage exist, and what will the dispute cost if it continues?
Pre-action correspondence
A strong letter before claim should identify the parties, material facts, legal basis, relief sought and the documents necessary to understand the dispute. It should be firm without becoming theatrical. Overstating a case at the outset can make later settlement harder and may damage credibility.
A response should do more than deny liability. It should identify which facts are admitted, which are disputed, why the legal claim is said to fail, what documents are relied upon and whether there is a counterclaim or alternative route to resolution.
Preserve the evidence
Civil cases can turn on documents created long before a solicitor is instructed: contracts, emails, WhatsApp messages, invoices, bank records, meeting notes, recordings, photographs, website captures and internal files. Once litigation is contemplated, potentially relevant material should be preserved.
Deleting inconvenient material is not a litigation strategy. A party’s disclosure obligations can extend to documents that damage its own case as well as documents that support it. Early document control reduces the risk of accidental loss and helps identify the real strengths and weaknesses before money is spent on proceedings.
Contracts and commercial agreements
Many disputes begin with a contract but are not resolved by reading one clause in isolation. The court may need to consider the agreement as a whole, incorporation of terms, variation, performance, breach, causation, loss, exclusion clauses, notices and the parties’ conduct.
The factual chronology matters just as much as the wording. What was promised, what changed, what was delivered, what objection was raised and when? A clean chronology often exposes whether the dispute is really about contractual interpretation, non-performance, payment, quality, termination or something else.
Issuing and defending proceedings
If settlement is not achieved, the claimant must formulate a legally coherent claim and the defendant must respond within the procedural timetable. The statements of case define the issues the court is being asked to determine. Vague pleading can create unnecessary applications and cost later.
A defendant should not assume there is no case simply because the claimant’s letter was weak; the issued particulars may be different. Equally, a claimant should not issue proceedings merely to increase pressure without assessing the merits, evidence, jurisdiction, limitation and costs risk.
Track, case management and proportionality
Civil cases are managed according to their value, complexity and procedural needs. The court may allocate the case to a track and give directions governing disclosure, witness statements, expert evidence and trial. The timetable matters. Missing a direction can lead to sanctions, wasted cost or evidence being excluded.
Litigation strategy should remain proportionate to the value and importance of the dispute. A technically correct point that costs more to fight than it can recover may not be commercially sensible.
Disclosure
Disclosure is the process by which relevant documents are identified and made available in accordance with the applicable rules and directions. A “document” is broad and can include electronic records. The obligation is not limited to the documents a party wants the court to see.
The search should be planned. Relevant custodians, email accounts, devices, cloud storage and date ranges may need to be identified. If a specific class of document appears to exist but has not been disclosed, the proper procedural route can include requests and, where necessary, applications for specific disclosure.
Privilege
Not every relevant document is available for inspection. Legal professional privilege and other protections can apply. Privilege is technical and can be lost by careless circulation or disclosure. Businesses should think carefully about how legal advice and internal investigation material is created and shared.
Witness statements
A civil witness statement is evidence, not advocacy disguised as evidence. It should explain what the witness personally knows, how they know it and identify relevant documents. The strongest statements are usually chronological, specific and candid about points the witness cannot remember.
A statement that reads like submissions may attract criticism and can be less persuasive. The legal argument belongs elsewhere. The witness’s role is to give admissible factual evidence in their own account.
Expert evidence
Expert evidence may be required where the court needs specialist assistance on an issue outside ordinary knowledge: valuation, accountancy, engineering, medicine, technology or another discipline. Experts owe duties to the court. They should be instructed to answer defined questions rather than to act as a partisan advocate.
Before instructing an expert, consider whether the issue genuinely requires one, whether permission will be needed, what assumptions the expert is being asked to make and whether the likely value of the evidence justifies the cost.
Interim injunctions and urgent relief
Civil Procedure Rule Part 25 gives the court powers to grant interim remedies, including injunctions and orders preserving property. In urgent cases relief can sometimes be sought before the main claim is issued. Applications require evidence and, where made without notice, carry demanding duties because the respondent is not present to answer the case.
Urgent relief should not be confused with a threatening solicitor’s letter. The applicant needs a legal basis, evidence, a properly framed order and a plan for the substantive claim. The practical consequences, undertakings and costs exposure must also be considered.
Summary judgment
CPR Part 24 allows the court in appropriate cases to decide a claim or issue without a full trial where a party has no real prospect of succeeding and there is no other compelling reason for a trial. It can be powerful where the dispute appears to be manufactured or legally unsustainable, but it is not a substitute for trial simply because one side believes its case is stronger.
A summary judgment application should be built around the issue that can actually be determined. If important facts genuinely require oral evidence or cross-examination, an early application may add cost without resolving the case.
Strike out
The court also has powers to strike out statements of case in defined circumstances. Strike-out and summary judgment are different tools. Choosing the wrong procedural route can obscure an otherwise good point.
Settlement and ADR
Settlement is not a sign that a case was weak. Civil litigation is an exercise in risk. A negotiated outcome can protect cash flow, confidentiality, relationships and management time in ways a judgment cannot. Mediation and other forms of ADR can be particularly effective once the parties understand the evidence and litigation risk.
The timing matters. Settling before the key documents are understood can surrender value; waiting until after disproportionate cost has been incurred can destroy value. We treat settlement as part of litigation strategy rather than as an afterthought.
Part 36 offers
Part 36 of the Civil Procedure Rules contains a self-contained regime for formal settlement offers with potentially significant costs consequences. A Part 36 offer should therefore be made or accepted with an understanding of valuation, timing and the consequences if the eventual judgment is more or less advantageous than the offer.
Not every settlement proposal needs to be a Part 36 offer. Open offers, without-prejudice negotiations and other mechanisms can serve different purposes. The format should match the strategy.
Costs risk
Costs are central to civil litigation. CPR Part 44 gives the court broad discretion, with the general rule in many cases that the unsuccessful party pays the successful party’s costs, subject to the rules, track, fixed-cost regimes and the court’s discretion. Recoverability is not the same as what a client pays their own solicitor.
Conduct before and during proceedings, success on particular issues, proportionality and settlement efforts can affect costs. A client should therefore receive advice on cost risk as the case changes, not only when the bill arrives.
Interim applications and costs
Applications can concern disclosure, amendments, extensions, relief from sanctions, interim injunctions, security for costs and many other issues. Applications are not cost-free side disputes. They can produce immediate costs orders and influence the court’s view of case management.
Trial
By trial, the case should be distilled rather than expanded. The court needs to know the issues, evidence and legal questions requiring decision. Good preparation means the trial bundle, witness evidence, chronology and submissions all work from the same theory of the case.
Enforcement
A judgment is valuable only if it can be enforced. Asset position and solvency should be considered before expensive proceedings are launched. Enforcement options depend on the judgment debtor’s assets and circumstances and can include different court processes against money, property, earnings or other assets.
Private funding
Our civil litigation work is privately funded. Depending on the matter, work may be charged at agreed hourly rates, by a staged or fixed fee for a defined piece of work, or under another written arrangement where appropriate. The scope and cost assumptions should be clear before substantial work begins.
Frequently asked questions
Should I send a letter before action myself first?
You can, but a poorly framed letter can make later legal work harder. Where the dispute is substantial, urgent or legally complex, it is often sensible to take advice before fixing your position in writing.
Can I recover all my legal costs if I win?
Not necessarily. Costs recovery depends on the applicable rules and orders, and the amount recovered from the opponent may be less than the amount paid to your own lawyers.
Can we make the other side disclose documents before suing?
Pre-action disclosure is available in defined circumstances, but it is not an automatic general right to inspect everything before issuing. The legal test and proportionality must be considered.
Can you take over existing proceedings?
Yes, subject to conflicts, deadlines and review of the file. Send the statements of case, latest order, next hearing and key correspondence first.