7.1 Pre Action Matters
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There are several matters which must be considered by a solicitor during the initial stages of a possible claim.
Jurisdiction
If the case concerns a cause of action outside the jurisdiction or any of the parties, including the client, are based abroad, it must first be ascertained whether in fact the Courts actually have jurisdiction to hear the case. Should the question arise, the matter can be settled on consideration of the Civil Jurisdiction and Judgments Acts 1982 and 1991.
Arbitration Clauses
In contractual disputes, the agreement must be checked to ensure that there is no clause requiring the parties to solve disputes using arbitration rather than litigation. If the contract does contain an arbitration clause, this will be binding on both parties and they will be expected to arbitrate and be bound by the decision of the arbitrator.
Commencing Proceedings – Choice of Courts
Since the county and High Court have concurrent jurisdiction, the Claimant can generally decide between the two in terms of issuing proceedings. Under the Civil Procedure Rules, Practice Direction 7, there are some restrictions, however:
2.1 Proceedings (whether for damages or for a specified sum) may not be started in the High Court unless the value of the claim is more than £15,000.
2.2 Proceedings which include a claim for damages in respect of personal injuries must not be started in the High Court unless the value of the claim is £50,000 or more.
2.3 A claim must be issued in the High Court or a county court if an enactment so requires.
2.4 Subject to paragraphs 2.1 and 2.2 above, a claim should be started in the High Court if by reason of:
- (1) the financial value of the claim and the amount in dispute, and/or
- (2) the complexity of the facts, legal issues, remedies or procedures involved, and/or
- (3) the importance of the outcome of the claim to the public in general, the Claimant believes that the claim ought to be dealt with by a High Court judge.
It is important that proceedings are commenced in the appropriate place, since there may be severe cost sanctions as a result of a claim being issued in the wrong court.
