Saturday, 27 July 2013

Pre-action conduct

There is an interesting document that is well worth reading before taking court action. The Pre-Action Conduct practice direction.

It covers what you should do before taking someone to court. I knew the key matters anyway - giving notice of your intentions, providing enough information to resolve the matter, giving enough time (e.g. 14 days) for a response, and so on.

It also explains that a number of specific pre-action protocols exist. The main ones I have ever been involved in - simple breach of contract or collection of a debt are not specially covered by particular protocols.

One thing I was not fully aware of, and I have to thank the letter from Huxley / SThree for pointing out, are that some form of "Alternative Dispute Resolution" should be considered (ADR). Yes, I know saying ADR is somewhat like swearing anywhere near me but this is not quite the same as the "ADR schemes" that The Communications Act insist on for communications providers.

Thankfully ADR is not compulsory. The court may require evidence that the parties considered some form of ADR. They do say "appropriate form of ADR", and so the cost of various forms of ADR are highly relevant.

They also say that ADR and the practice direction itself should not be used as a tactical device to secure and unfair advantage for one party or generate unnecessary costs.

The types of ADR include, at one end of the spectrum "discussion and negotiation", and then go on to mediation, evaluation by an independent body, and arbitration. Pretty much anything apart from "discussion and negotiation" would, as I understand it, cost a lot more than using the court and so be "unnecessary costs", if the claim is for a small amount.

The main thing seems to be that some form of ADR was considered - so always worth - at least - suggesting that ADR by means of discussion and negotiation is offered. At least then you can tell the court you tried.

So, it seems I give them a few more days for "discussion and negotiation" to break down and then take them to court for breach of contract (assuming they are as intransigent as they seem to have been all along).

If I lose the case for breach of contract, at least I can then continue with the case for spam. Their defence to that was quite long, but the good news, due to a quirk of the way we have clueless set up, is that I personally have been paying (albeit 1p per full moon) for email on and domains for many years making me the "individual subscriber" for those domains. I, personally, as the recipient for those emails, did not give consent for them to spam me. That should mean we still have a good case on the spam case if ever it goes to court.

P.S. I have just written a few follow up emails to spammers as well as Huxley/Sthree quoting pre-action conduct practice directions and it makes one feel very empowered that one is following the processes. I have invited spammers, including Deane Computer Solutions Limited, to consider discussion and negotiation as ADR before I take county court action.

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