In English and many other common law legal systems (and indeed most civil war jurisdictions) there is a strong prejudice towards settling matters without litigation. To forward this objective those systems have developed civil procedure rules and protocols designed to try to ensure that parties have practicable and genuine settlement discussions before issuing proceedings. One aspect of the rules is that a potential plaintiff is, in general, required to contact the potential defendant before issuing proceedings and provide information regarding the plaintiff’s claim so as to afford the defendant an opportunity to make a reasonable settlement offer, usually by means of a letter-before-action or pre-action letter. Typically that letter needs to be sent a reasonable period (e.g., 10 working days) before issuing proceedings. In other jurisdictions such a warning letter may be unusual since a putative defendant might use it to file a declaratory judgement action in a more friendly court.
United States parties need to be well aware that in other common major restrictions simply launching a lawsuit without warning or attempts to enter into a discussion with the putative defendant can result in award of costs against the plaintiff even if they succeed, or reduced costs recovery under the so-called English Rule applied in almost all common law Jurisdictions other than the United States. This is also the case in civil large jurisdictions. In a lot of jurisdictions judges take a very negative view of a litigant who launches proceedings without warning or without an effort to resolve a dispute before resorting to litigation.
In English law the civil procedure rules contain various protocols as to what information is required to be provided in such a pre-action letter. In some instances very specific information is required, but in general the rules provide that:
Before commencing proceedings … parties to have exchanged sufficient information to—
(a) understand each other’s position;
(b) make decisions about how to proceed;
(c) try to settle the issues without proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute.
While in the Republic of Ireland, there is no formal pre-action protocol except personal injury cases, the courts will tend to treat a litigant, even a prevailing litigant somewhat disfavourably if they do not send some sort of pre-action warning letter. For this reason it is generally advisable to simply send a letter before action. Canada is similar, but Australia does have a formal pre-action protocol in its court rules.