What, if any, are the pre-action conduct requirements in your jurisdiction and what, if any, are the consequences of non-compliance?
There is no formal pre-action conduct requirement under the Civil Procedure Code.
There are no set rules under Maltese law determining the applicable pre-action conduct requirements; however it has become customary for the courts of Malta to issue a decree following the appointment of the first hearing of the case imposing a deadline on the applicant to disclose all affidavits and documentary evidence within a set time-frame. An applicant may request the court for an extension of the said time-frame by means of a court application filed in the records of the case. Should a party fail to comply with the said court orders, the Court would have the power to prohibit the said party from submitting the said evidence.
In the High Court, a new protocol for medical negligence cases in the High Court took effect from 1 July 2017. This protocol has 3 parts: pre-action discovery, commencement of legal proceedings and pre-trial proceedings, and medical assessors. With regard to the commencement of legal proceedings, the claimant now has to file and serve the core documents in support of his claim (including the expert report(s)), together with his Statement of Claim.
There is also a framework for the appointment and scope of a medical assessor, who is to assist the Judge on specialised and technical aspects of the case.
Non-compliance of the protocol can result in adverse costs orders.
There are also pre-action conduct requirements in medical negligence cases, personal injury claims and non-injury motor accident actions in the State Courts. In such actions, the Court will have regard to non-compliance with pre-action protocol when exercising its discretion and powers, especially in respect of costs.
The State Courts will also be introducing a pre-action protocol for defamation actions by the end of 2018.
A party who intends to commence an action in the SICC, or who may be a party to an action commenced in that Court, may apply for a pre-action certificate. A pre-action certificate allows the applicant to obtain an early indication from the Court on several important matters, including: (a) whether the claims in the intended action are of an international and commercial nature, to fulfil jurisdictional requirements; (b) whether the intended action is an offshore case in considering issues of foreign representation; and (c) whether any orders protecting confidentiality should be made.
After amendments adopted in 2016 and 2017, the mandatory pre-trial procedure was introduced with respect to monetary claims, except for certain categories of disputes. Before initiating court proceedings, the claimant is required to send a pre-trial complaint to the opponent and wait for 30 days, unless the other period is agreed or specified by the law.
Should the pre-trial procedure be not met, the court may refuse to consider a claim. Also, the court may direct the claimant to reimburse all costs of the proceedings.
As a general rule, claims can be filed without any previous action required. Nevertheless, it may be convenient to notify or, at least, request that the other party fulfil or comply with their obligation as otherwise, if a claim is filed and the defendant acquiesces to it, the claimant will not have any right to recover the costs of the litigation as the proceedings could have been avoided.
In terms of a civil claim, under Article 1238 of the Indonesian Civil Code, a defaulting party has to, first, be declared as in default. This becomes the norm for the court to consider if both parties have attempted to amicably settle the dispute. To ensure that amicable settlement is exhausted, the Supreme Court further issued a regulation number 1 of 2016 concerning In-Court Mediation which obliges the disputing parties to mediate before proceeding for trial. The parties are given a minimum 30 (thirty) days for the mediation, and if the mediation is declared failed, the case will then proceed to trials.
Under German law, there are no general mandatory requirements for a specific pre-action conduct. However, plaintiffs should be aware of certain procedural rules to avoid cost sanctions or other disadvantages during the proceedings:
- A debtor should always be given prior notice to perform the obligation before an action is filed with the court. Otherwise, the debtor might immediately acknowledge the claim upon the filing, thereby imposing the costs of the proceedings solely on the plaintiff, sec. 93 ZPO.
- Declaratory relief is admissible only if the plaintiff has a legitimate interest in the legal action. As a general rule, actions for performance have priority over actions for declaratory judgments, i.e. a plaintiff lacks the required legitimate interest for declaratory relief if it could request performance of the obligation.
- Furthermore, escalation clauses (e.g. in a company’s articles of association) requiring preliminary alternative dispute resolution efforts (e.g. negotiations at the level of the managing directors or mediation proceedings) have practical importance since any court action that is initiated before the requirements of the escalation clause are fulfilled will be dismissed as inadmissible.
In general terms, the are no pre-action conduct requirement before turning to litigation. Even though there are alternate means to solve disputes, they are not mandatory in Mexico, so parties are allowed to present their claims even if a settlement is being explored. For that reason, there are no sanctions for non-compliance.
However, specific actions do have specific requirements. For example, for executive commercial trials, the original note has to be presented for collection. In other cases, when the obligation does not specify a specific date for compliance, a pre-requisite is to demand compliance within the next thirty days. In shareholders disputes, the stocks have to be deposited before a Notary Public or Credit Institution before filing the complaint. In bankruptcy proceedings, it must be demonstrated a generalized default or breach of payment by the Debtor of its obligations, which consists of the default of its obligations of payment to two or more different creditors and the fulfilment of certain conditions. Therefore, before filing a specific action, litigators must analyze the specific requisites provided for in the law regarding the action to be initiated.
After the introduction of law 4512/2018, entering into force in September 2018, the parties are obliged to attempt the resolution of their dispute through mediation prior to the submission of any action before the court for certain categories of disputes (e.g. disputes arising due to violation of trademark and patent rights, stock-market contracts, remuneration claims of certain professionals, etc). For those disputes any action submitted to the court without the prior procedure of mediation, shall be rejected as inadmissible.
Generally, there are no pre-action conduct requirements to consider.
However, it is recommended to send a formal notice which enables to trigger the accrual of the legal interests.
Unlike personal injury proceedings, which require a letter of claim from the plaintiff to the defendant prior to the commencement of proceedings, there are no pre-action conduct requirements for commercial proceedings. However, parties in commercial proceedings may consider seeking mediation before litigation begins. Though the mediation process is voluntary, the court has discretion to order costs on an indemnity basis if it considers a party has unreasonably refused to take part in mediation.
As mentioned, in some matters (lease, loan, lease of business, insurance, banking and financial contracts), the mediation procedure is a prerequisite of admissibility of the action. Likewise, the assisted negotiation procedure is a prerequisite of the admissibility of the action for payment requests, for any reason, for amounts not exceeding € 50,000.00.
In any case, if one of those compulsory procedures is not performed, at the first hearing the Judge orders the relevant procedure to be carried out within a deadline. Failure to comply leads to the rejection of the claim.
Although not a formal pre-action requirement, it is normal practice for a claimant to send a ‘letter before action’ to prospective defendant(s) before initiating proceedings offering them an opportunity to admit liability.
Separately, in line with the increased focus on ADR, the Mediation Act 2017 introduced a requirement that solicitors must advise all clients, prior to issuing proceedings, to consider mediation as a means of attempting to resolve the dispute, and provide them with details of the advantages / benefits of mediation and information on mediation services. Should proceedings subsequently issue, at the time of such issue, the solicitor must lodge with the relevant court office a statutory declaration evidencing that s/he has complied with his/her obligations under the Act.
Besides the possible necessity to hold a hearing before the Justice of Peace prior to the filing of the statement of claim (see above), there are no pre-action conduct requirements set forth by the law.
Unlike the common law, there are no pre-action conduct requirements in the Chilean legal system for civil or commercial matters. Exceptionally, our law entitles the future plaintiff to request, before commencing the proceeding, certain specific interim measures specified in the law either to prepare the proceeding commencement, to exceptionally ensure evidence if there are reasons to believe that it might disappear or to guarantee the results of a final sentence accessing a claim.
To request this type of measure, the future plaintiff shall inform the court of the action he intends to file with a brief explanation of the claim’s grounds and he would also have to prove the necessity to request the specific measure. In case of interim measures seeking to ensure the results of a favorable final decision, the plaintiff could be requested to pay a bond.
There are generally no pre-action conduct requirements in commercial disputes. One notable exception is, however, employment matters which are governed by the Labour Disputes (Judicial Procedure) Act. A party may not, according to this act, commence court proceedings unless the party has negotiated with his or her counterparty. The court will dismiss the claim if such negotiation has not been attempted. Also, lawyers being members of the Swedish Bar Association must not take legal action unless the counterparty is given reasonable time to consider the client’s claim and to reach an amicable settlement, although legal action may be taken without prior notice if a delay would entail a risk of loss of the legal rights or other harm, or if there are other special reasons for taking such action.
In our jurisdiction there are no pre-action conduct requirements to consider. For instance, if there is a breach of contract, the compliant party may resort directly to judicial action.
Generally, there are no pre-action requirements. However, in specific cases the law requires that a party sends a legal notice to its counterparty before initiating any legal proceedings, such as when a landlord wishes to evict a tenant, or when a party wants to terminate a contract.
There are no pre-action requirements under Saudi Arabian procedural law.
Before bringing an action to the court, the party shall give notice in writing to the person or persons against whom the action may be brought. The notice shall contain information about the claim and the basis for the claim. Non-compliance does not have any direct consequences, but may influence the court’s decision regarding legal costs.
Generally there are no pre-action conduct requirements before commencing a commercial lawsuit. There are occasionally administrative orders and statutes at the state level that require mandatory mediation for certain commercial disputes. For example, Delaware passed the “Delaware Voluntary Alternative Dispute Resolution Act” in 1995, requiring parties to attempt mediation of commercial disputes before going to court. Likewise, in 2017, the Commercial Division in the New York County Supreme Court established a pilot project, which automatically assigns newly filed commercial cases (excluding those in which a self-represented person is a party) to a Justice outside of the Commercial Division for mandatory mediation.
In addition, disputes concerning contracts with mandatory arbitration provisions may be compelled to arbitrate, given the strong judicial presumption in favor of arbitration provisions and support of arbitration as a means of commercial dispute resolution.
Generally, there are no legal requirements to initiate any pre-action procedures regarding commercial disputes. In particular, there is no mandatory mediation or alternative dispute resolution mechanism for general commercial matters. However, it is recommended and common practice to request a debtor to fulfil its obligations before commencing legal proceedings. This is because the court may order the plaintiff to bear the court fees and its legal costs, if the defendant immediately complies with the claim or does not contest it.
Moreover, there is no pre-action disclosure under Austrian law. In any event, a party intending to bring a claim should ascertain that it has the evidence necessary to prove its claims as requests for evidence production during the proceeding are rather limited (especially in comparison to document production possibilities in common law jurisdictions).
In principle, pre-action conduct is not required under the CCP. However, there are certain types of disputes for which the plaintiff is required to first file a petition for mediation (such cases include those related to increases or decreases in rent for land or building under the Act on Land and Building Leases).
Although not a legal requirement, in practice, a notification by content-certified mail is often sent to the defendant before a complaint is filed in court, to give the defendant the opportunity to resolve the dispute out of court.
There are different pre-action protocols for some of the most common types of claims, such as debt claims or professional negligence claims. There is also a general Practice Direction which applies if there has been no specific pre-action protocol. It ensures that the parties have exchanged sufficient information to understand each other’s position, make decisions on how to proceed, attempt to settle issues without proceedings and support the efficient management of proceedings. Compliance with the protocols is not mandatory but the Court might take this into account when awarding costs or considering case management directions. It is therefore advisable to follow the relevant protocol whenever possible (although in some cases, such as when a limitation period is about to expire, it might be necessary to issue a claim and then engage in correspondence with the other side).
As a main rule there are no pre-action conduct requirements under Danish law.
However, according to the Danish Debt Collection Act it is a requirement prior to a creditor taking legal actions against a debtor that the debtor has received a letter of demand (In Danish:inkassoskrivelse). The letter of demand shall state all information that is necessary for the debtor to assess the claim. Furthermore, the letter of demand has to provide a time period of minimum 10 days where the debtor can redeem the claim without further measures are taken that can cause the debtor extra costs.
Pursuant to Decree No. 2015-282 dated 11 March 2015, the claimant has to mention in the writ of summons which steps have been undertaken to try to resolve the dispute amicably prior to initiating judicial proceedings, unless there is a legitimate reason relating to the urgency or the matter in question.
If the claimant fails to demonstrate such attempt, the court may appoint a mediator or a conciliator; this will generally slow down the procedure.
If the parties have agreed on a multi-tier dispute resolution clause, providing for a mediation or conciliation phase prior to any judicial claim before the court, such clause will be binding on the court. If an action is brought in breach of such clause, it will constitute grounds for inadmissibility of the claim.
There is no principle of mitigation of damages under French law, i.e. the claimant does not have to take reasonable actions to avoid additional injury or loss.
Under the Code, there are no general procedural rules governing the parties' pre-action conduct. However, as per Section 80 of the Code, an action against the government or public officers (in relation to acts done in their official capacity) cannot be brought unless a two-month prior notice is given, stating the cause of action. In urgent matters, it is also provided that the court can dispense with this requirement.
Additionally, certain statutes may also provide pre-requisites that are required to be met prior to initiation of legal proceedings. As an example, under Section 21 of the Arbitration Act, the arbitral proceedings commence on the date on which a request for that dispute to be referred to arbitration is received. For this purpose, the High Court of Delhi has, in Alupro Building Systems Pvt. Ltd. v. Ozone Overseas [2017 SCC Online Del 7228], held that this requirement of issuing a notice invoking the arbitration clause under Section 21 is mandatory unless there is an agreement to the contrary between the parties.
Further, amendments have also been carried out in Section 34(5) of the Arbitration Act to provide that an application for setting aside the arbitral award shall be filed only after issuing a prior notice to the other party. However, there are conflicting decisions of various High Courts on whether this provision is directory or mandatory in nature and this issue is currently pending adjudication before the Supreme Court.