Pre-action advice and strategy: Laying the foundation to win a dispute
In the tense pre-action phase, every decision is magnified.
We integrate with your firm to act as your IP strategic command, providing the comprehensive assessment and legal road map necessary to navigate this period successfully.
We ensure your firm is positioned for an optimal outcome (whether that is a rapid, favourable settlement or an unassailable position for litigation). We maintain our discreet, advisory role to fully protect your client relationship.
What is it?
Pre-action advice and strategy encompasses all legal, commercial, and evidential steps required before a claim is formally filed or responded to.
This phase is governed by strict pre-action protocols and is critical for cost recovery and positioning. Our services include:
- Evidential audits: Forensic review of all available evidence to confirm the strength and viability of the claim or defence.
- Legal position papers: Providing a definitive assessment of the legal merits, quantum of potential damages, and overall risk exposure.
- Commercial strategy mapping: Determining the correct commercial outcome (e.g. stopping infringement, obtaining damages, securing a license) and designing the pre-action correspondence (Letters Before Action) to achieve it.
- Jurisdictional strategy: Advising on the most advantageous forum for the dispute, including IPEC, High Court, or IPO.
Pre-action advice and strategy: How we assist you
We empower your firm with the high-level, litigation-informed strategy necessary to manage the pre-action period with confidence. We deliver clear, comprehensive, and commercially focused recommendations directly to your team.
- Predictive analysis: Our extensive litigation history allows us to predict the opponent's most likely response and build a strategy that pre-empts their moves, saving your client time and cost.
- Risk & cost control: We identify the pivotal moment for settlement versus litigation, ensuring that the Pre-Action Protocol requirements are used to maximise cost leverage and minimise risk exposure.
- Integrated action plan: We provide a step-by-step road map, detailing necessary actions, evidence gaps, and the precise legal arguments your team should deploy in all pre-action correspondence.
Our unique capability in this area
The pre-action stage is where the battle is often won or lost. Our unique capability is derived from our specialist focus on IP litigation.
We do not rely on theoretical advice; we provide a strategy built on hard-won courtroom reality.
- Litigation-tested correspondence: We draft and review pre-action letters with the rigour of a trial, ensuring that every piece of communication strengthens the client's position and satisfies the court's requirements for 'reasonable behaviour.'
- Case vetting: We apply a strict commercial filter to every case, providing an objective assessment that saves your client from pursuing non-viable claims or mounting an ill-conceived defence.
- Client relationship security: By providing this specialised, expert support discreetly, we ensure your firm retains full control and credit for the successful navigation of this complex, high-stakes phase.
Pre-action advice and strategy: Common questions and answers
Why is specialist pre-action advice critical if we are experienced litigators?
While you excel in general litigation, our focus is solely on IP-specific procedural rules and the evidential requirements unique to IP rights (e.g. patent claim construction, unregistered design originality).
Our insight ensures your strategy is compliant with IP case law and optimized for a successful outcome in Court (including IPEC or High Court) - should the issue fail to be resolved in pre-action.
What is the objective of the pre-action phase?
The objective is twofold: risk mitigation and strategic leverage.
Legally, the phase aims to comply with the Civil Procedure Rules (CPR) and clarify the issues and provide the opportunity for the issue to be resolved without formal legal action. Strategically, it is used to demonstrate strength, pressure the opponent into a commercially favourable settlement, and gather evidence efficiently while keeping costs controlled.
How does pre-action conduct affect potential cost recovery later?
Pre-action conduct is reviewed meticulously by the court when awarding costs. If your client acts unreasonably (e.g. aggressive without cause, or vague in their claim), they can face a significant adverse cost order, even if they ultimately win on the merits.
We ensure all conduct is measured, precise, and legally justifiable to protect their financial position.
What documentation do you require to begin a strategic assessment?
We require the core IP right document (e.g. trade mark certificate), a clear chronology of the infringement (or alleged infringement), and all relevant pre-action correspondence.
Our initial focus is on the core strength and validity of the IP right itself, as this underpins the entire strategy.
Partner with specialist IP counsel
Ensure your firm's dispute strategy is sound and cost-effective from the very first step. Use the contact form below to arrange a confidential consultation on how we can collaborate to build an unassailable pre-action foundation for your client.
The content on this page is provided for general informational purposes only and does not constitute legal advice. No solicitor-client relationship is created by your use of this site. While we strive to ensure the information is accurate and up-to-date, it should not be relied upon as a substitute for professional legal counsel. For specific advice regarding your legal situation, please contact us directly to arrange a consultation.
Find out more about how we charge for what we do here.