Attempted Settlement as a Pre-Litigation Requirement

Attempted Settlement as a Pre-Litigation Requirement
Tuesday August 16, 2011

I have been watching with interest the moves taking place across the Tasman in imposing, as a prerequisite to the filing of claim, that “genuine” or “reasonable steps” be taken to settle the claim.  The NZ District Court Rules heralded in a fundamental change in approach towards forcing parties to identify the issues in dispute and consider settlement.  The reason for the change was purportedly due to the District Court recognising that most civil cases settle.  There is no surprise there.  Going back to what the Australians are up to; no Federal claim (putting aside the political issues at individual state level regarding commencement of these obligations) will be accepted for filing unless the litigant has taken “genuine” or “reasonable (in NSW) steps” to clarify or narrow the issues in dispute and/or engaged in alternative dispute resolution (ADR) and has completed and filed a Genuine Steps Statement (GSS) or in NSW a Dispute Resolution Statement.  The litigant’s lawyers must also have informed the litigants of the genuine or reasonable steps requirements including advising on ADR.  Genuine steps is defined as being a sincere and genuine attempt to resolve the dispute, having regard to the person’s circumstances and the nature of the circumstances of the dispute.  The GSS must: list the issues in dispute and the date upon which they arose, list out in a tabular form each of the steps taken to resolve the dispute, list any steps taken by the respondent that the applicant claims were no genuine and the basis upon which the applicant has formed that view and identify and provide the details of any referral to ADR and issues what were resolved by ADR.  District Court claims in New Zealand do not go as far as requiring a “genuine” or reasonable steps” approach to be taken first.  However, I suspect that if the intent of the District Court Rules is to be met (forcing litigants to try and resolve their own disputes) then such an approach is probably the next logical step.  Whether such a step would be reasonable might be another matter altogether.

 

By Chris Patterson