Cost and Time Hurdles in Civil Litigation: Exploring the Impact of Pre-Action Requirements

Abstract

Pre-action requirements, including protocols, obligations and schemes, exist in various forms across Australia and are intended to encourage the early resolution of disputes without the need to commence proceedings in a court or tribunal. Whilst the capacity of pre-action requirements to reduce the cost and time of dispute resolution has served as one of the major reasons for their introduction, they have also been the basis of concern relating to cost and time. These concerns have been raised by those within the legal profession, as well as others, and have centered around the potential burden that these requirements might place on would-be litigants and disputants. It has been argued that pre-action requirements could increase the cost (and indeed time taken) of resolving a dispute because the of the work that may be required to be done by a lawyer at an early stage, before litigation commences. It has also been suggested that they may impose a hurdle and prevent access to courts. This article discusses recent research undertaken that explored whether pre-action requirements do place cost and time hurdles on parties to a dispute, and what support or recommendations would assist in minimizing these, where they exist.

Keywords: pre-action, pre-litigation, civil procedure, concerns, efficient, barriers, access, justice, ADR