On 6th April 2015 the Practice Direction on Pre Action Conduct (PDPAC) changed.  It sets out the conduct and procedures that the court expects parties to follow before commencing proceedings where no other specific practice direction applies (i.e. for contested probate matters).  McMillian Williams’ Head of Contested Probate, Hayley Bundey, explains what the key changes are and how they impact contested probate clients.

Alternative Dispute Resolution (ADR)

The most important change is emphasis upon Alternative Dispute Resolution (ADR) (including mediation) with removal of the phrase "although ADR is not compulsory" and inclusion of potential costs sanctions if parties fail to respond to/ refuse to enter into ADR. This is a significant shift from a "gentle pushing" of the parties towards ADR to a "direct insistence" that they attempt to do so. This change stems from a 2013 case which started the process but crucially this is now enshrined in the Court’s rules which parties are required to comply with. The emphasis on ADR is then reflected in other changes in the PDPAC below.

Proportionality

The new PDPAC introduces the principle that any disproportionate costs incurred will be unrecoverable as part of the costs of proceedings; thus directly targeting the behaviours which result in wasteful and unnecessary Pre-Action costs.  This strengthens the importance of ADR and its ability to avoid the often unnecessary costs of litigation.  

Stocktaking

The introduction of stocktaking (reviewing the evidence to attempt to narrow the issues in dispute) as a new active process which parties must undertake before commencing proceedings is another example of positive change in the new PDPAC. This, coupled with the emphasis on ADR, should ensure that court proceedings is now truly a last resort after attempts at ADR, and by that point the issues in dispute should have been reduced as far as possible before the Court hears the case (thus saving unnecessary costs).

We Can Help

The McMillan Williams' Inheritance Disputes team have always been strong advocates of ADR (particularly mediation) so these changes to the PDPAC are therefore very welcome as they should gradually shift the Court’s psyche towards a culture of compulsory mediation. More importantly the changes enable more and more clients to obtain their just inheritance without "airing their dirty laundry" in Court. Mediation, in particular, gives our clients the chance to also agree terms which they wouldn’t necessarily be able to seek at trial; such as re-distribution of personal possessions of sentimental value which can often make the difference between the parties resolving a dispute or not. 

At McMillan Williams we have extensive experience at successfully resolving inheritance disputes through mediation.  If you think you have an inheritance dispute and want some advice on your options call us today on 0203 551 8500 or email. us at enquiries@mwsolicitors.co.uk

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