Pre-action considerations and steps - Parties and causes of ...

Learning Outcomes

This article details the essential pre-action considerations involved in identifying parties and establishing causes of action in civil disputes, with an SQE1 FLK1 focus. It details how to distinguish between different legal statuses of potential litigants (individuals, sole traders, partnerships, limited liability partnerships, and companies) and how those statuses affect naming, service, liability, and enforcement. It covers the core elements of key causes of action, specifically breach of contract and negligence, and explains how those elements map onto typical SQE-style factual scenarios. The article also discusses when additional or alternative causes of action may arise (such as misrepresentation, breach of statutory duty, occupiers’ liability, or product liability) and how to evaluate which routes are most advantageous. It analyses limitation, accrual of causes of action, and the role of pre-action protocols, ADR, and cost sanctions. Finally, it highlights recurring pre-action issues—capacity, deceased parties, vicarious liability, concurrent liability, and practical enforceability—and provides a structured, exam-ready checklist for assessing multiple-choice options and short-form case studies.

SQE1 Syllabus

For SQE1, you are required to understand the practical importance of correctly identifying potential parties and establishing viable causes of action before commencing litigation, including the ability to determine the correct defendant based on legal structure and to identify the essential components of a cause of action within a given scenario, with a focus on the following syllabus points:

• Identifying the distinct legal characteristics of different business structures (individuals, sole traders, partnerships, LLPs, limited companies) relevant to litigation.
• Understanding the practical consequences of incorrectly identifying a party.
• Defining the concept of a 'cause of action'.
• Recognising the fundamental elements necessary to establish common causes of action in contract and tort.
• Applying this knowledge to factual scenarios to assess the viability and correct formulation of a potential claim.
• Appreciating the effect of limitation and accrual of a cause of action in contract and tort, including latent damage.
• Understanding pre-action obligations under Practice Direction – Pre-Action Conduct and Protocols (and specific protocols where applicable) and the cost consequences of non-compliance or unreasonable refusal to engage in ADR.
• Knowing how to verify party details (for example, Companies House searches, letterheads/invoices, insurance enquiries) and considering enforceability and funding at the outset.
• Recognising scenarios where multiple defendants should be considered (for example, employee and employer via vicarious liability) or where a defendant lacks capacity and a litigation friend is required.
• Being aware of naming and service conventions for different entity types (including ‘trading as’ and ‘(A Firm)’), and the risks around substitution after limitation.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Your client wishes to sue 'Dave's Deliveries' for breach of contract. Enquiries reveal Dave Smith runs the business alone from his home address. How should the defendant be identified on the claim form?
   1. Dave's Deliveries
   2. Dave Smith
   3. Dave's Deliveries Ltd
   4. Dave Smith trading as Dave's Deliveries
2. Which of the following is NOT an essential element for establishing a cause of action for breach of contract?
   1. Existence of a valid contract between the parties.
   2. Breach of a specific term of the contract by the defendant.
   3. Intention by the defendant to cause loss to the claimant.
   4. Loss or damage suffered by the claimant as a result of the breach.
3. A customer is injured by a faulty electrical product purchased from 'GadgetStore Ltd', a private limited company. Who is the primary legal entity the customer should sue?
   1. The manager of the GadgetStore Ltd branch.
   2. The manufacturer of the electrical product.
   3. GadgetStore Ltd.
   4. The director responsible for product safety at GadgetStore Ltd.

Introduction

Before initiating court proceedings, a solicitor must undertake important preliminary work. This involves ensuring that the potential claim is valid and correctly structured. Two fundamental aspects of this pre-action stage are: first, identifying the correct legal entities involved in the dispute (the parties); and second, establishing the legal basis for the claim (the cause of action). Errors at this early stage can lead to wasted costs, procedural difficulties, or even the complete failure of a claim. Therefore, accurate identification and analysis are essential for successful litigation.

In addition, early consideration should be given to limitation, the content of any applicable pre-action protocol, and to ADR. Courts may impose costs sanctions for premature issue, for refusing to engage with ADR without good reason, or for non-compliance with pre-action protocol steps. As a practical matter, viability and enforcement must be assessed alongside legal merit: a technically strong claim against an insolvent defendant or against a party with no UK presence may be of little value.

Key Term: Legal Entity
An individual or organisation recognised by law as having legal rights and obligations, including the capacity to sue and be sued.

Identifying the Parties

A fundamental pre-action step is to determine precisely who has the right to sue (the potential claimant) and who should be sued (the potential defendant). Parties must be correctly identified according to their legal status, as this impacts how proceedings are started, served, and how any judgment is enforced. It also determines the proper naming of parties on the claim form and particulars, and where service should occur.

Individuals

A natural person sues and is sued in their full name (e.g., Jane Doe). If an individual conducts business under a trading name (a sole trader), they are still sued in their own name, noting the trading style.

Key Term: Sole Trader
An individual who owns and runs their own business, which is not incorporated. Legally, the business and the owner are indistinct.

Proceedings against a sole trader, such as David Chen trading as 'FastFix Solutions', should name the defendant as 'David Chen trading as FastFix Solutions'. The liability rests with the individual owner.

Capacity and representation need attention at the outset. Where an adult lacks capacity to conduct litigation, or where the claimant/defendant is a child, a litigation friend will be required.

Key Term: Litigation Friend
A person who conducts court proceedings on behalf of a child or protected party who lacks capacity to do so.

If the intended defendant has died, claims do not proceed against the deceased personally but must be brought against the personal representatives (executors or administrators). Where a personal representative has not yet been appointed, proceedings are commonly issued against the “personal representatives of [name] deceased”.

Partnerships

A traditional partnership, governed by the Partnership Act 1890, is a relationship between two or more persons carrying on business together with a view to profit. It is unincorporated.

Key Term: Partnership (General)
A business structure defined by the Partnership Act 1890 where two or more persons run a business in common for profit. It lacks separate legal personality.

Partnerships can sue or be sued in the firm's name (e.g., 'Smith & Jones (A Firm)') or by naming the individual partners. Partners typically face unlimited personal liability for the firm's debts, meaning personal assets are at risk. For service and naming, using “(A Firm)” makes clear the unincorporated status, and service may be effected on a partner or on the person with control or management at the principal place of business. Remember partners are jointly liable for partnership obligations while partners, and often jointly and severally liable for torts committed in the ordinary course of the firm’s business.

Limited Liability Partnerships (LLPs)

Created under the Limited Liability Partnerships Act 2000, LLPs are incorporated bodies with separate legal personality.

Key Term: Limited Liability Partnership (LLP)
An incorporated business structure offering limited liability to its members, registered under the Limited Liability Partnerships Act 2000.

LLPs sue and are sued in their registered name (e.g., 'City Consultants LLP'). Members' liability is generally limited to their investment, protecting their personal assets. As with companies, checking the register (Companies House) confirms the correct entity name, registered number, and service details.

Limited Companies

Companies incorporated under the Companies Act 2006 possess separate legal personality, distinct from their shareholders (owners) and directors (managers).

Key Term: Limited Company
An incorporated business registered under the Companies Act 2006, which is legally separate from its owners (shareholders) and managers (directors). Liability is typically limited.

Companies sue and are sued in their registered name (e.g., 'Innovate Solutions Ltd' or 'Global Plc'). Shareholders' liability is usually limited to any amount unpaid on their shares. Importantly, it is the company itself, not its directors or employees, that is liable for the company's contractual obligations or torts committed in its name. Directors may, however, incur personal liability if they give personal guarantees, make fraudulent or negligent misrepresentations in their own capacity, or commit independent torts.

Where an employee commits a tort in the course of employment, consider suing both the employee and the employer because the employer may be vicariously liable and is usually better placed to meet any judgment.

Key Term: Vicarious Liability
A principle by which one person (commonly an employer) is held liable for the torts of another (such as an employee) committed in the course of employment.

Other party types and practical points

Unincorporated associations (for example, some clubs) do not generally have separate legal personality; claims are often brought against officers or members representing the association. Public bodies are often incorporated by statute; always confirm the correct legal name.

Whatever the entity type, verify the correct legal status and details before issue. Sources include Companies House (for companies and LLPs), invoices and letterheads (which should show the entity’s full registered name and number), contractual documents, and—where relevant—insurer details (for example, public or employers’ liability policies).

Consequences of Incorrect Identification

Naming the wrong defendant can be fatal to a claim. For instance, suing a director for a company's breach of contract will fail because the company is the separate legal entity that entered into the contract. Similarly, suing a trading name like 'FastFix Solutions' instead of 'David Chen trading as FastFix Solutions' might cause enforcement issues. Verifying the correct legal status (e.g., via Companies House for companies/LLPs or by checking invoices/letterheads) is essential.

If, despite reasonable diligence, proceedings are issued against the wrong name, limited scope exists to amend or substitute once limitation has expired. While the court may permit substitution where there was a genuine mistake as to name (rather than identity) or where it is necessary to add or substitute a party for the claim to proceed, relying on these powers is risky and should not be treated as a safety net. Early checks minimise the risk of a strike out or an irremediable limitation problem.

Worked Example 1.1

Your client, TechServices Ltd, contracted with a business called 'Apex Consulting' to develop bespoke software. The software delivered is faulty, causing significant financial loss. Your client believes 'Apex Consulting' is run by two individuals, Sarah Brown and Ben Carter, but is unsure of their exact business structure. How should you advise your client regarding identifying the potential defendant?

Answer:
You should advise TechServices Ltd that further investigation is necessary. 'Apex Consulting' could be a trading name for Sarah Brown and/or Ben Carter as sole traders, a general partnership ('Sarah Brown and Ben Carter trading as Apex Consulting' or 'Apex Consulting (A Firm)'), an LLP ('Apex Consulting LLP'), or even a limited company ('Apex Consulting Ltd'). You need to determine the correct legal entity before issuing proceedings. Checking invoices, correspondence, or potentially Companies House (for LLPs/Ltd companies) would be necessary steps. Suing the wrong entity could lead to the claim failing or being significantly delayed.

Worked Example 1.2

A pedestrian is injured when struck by a van driven by Cora, an employee of Speedy Logistics Ltd, during a delivery round. The van appears to be liveried with Speedy Logistics branding. Who should be named as defendants?

Answer:
The driver and the employer should both be considered as defendants. Cora is a direct tortfeasor; Speedy Logistics Ltd is potentially vicariously liable for the tort committed in the course of employment. Including the employer improves enforceability. If the driver is an independent contractor, vicarious liability may not attach; the employment status should be checked (contracts, HR records, control).

Worked Example 1.3

A claim is contemplated against a self‑employed builder who has since died. The property damage occurred eight months ago. The client wants to issue quickly to protect limitation. Against whom should the claim be brought?

Answer:
Proceedings should be issued against the personal representatives of the deceased builder (naming the executors or “the personal representatives of [name] deceased”). If no grant has been issued, the claim may be started against “the personal representatives of [name] deceased” and later amended to name the executors/administrators. Do not sue the deceased by name. Consider insurers and whether the policy responds.

Establishing the Cause(s) of Action

Alongside identifying the parties, the solicitor must analyse the facts to determine the legal basis of the potential claim.

Key Term: Cause of Action
The complete set of facts necessary to give rise to a right to sue. It constitutes the legal grounds upon which a claim is based.

A potential claim must be founded upon a recognised cause of action. This involves identifying the specific legal elements required and ensuring the facts support each element. It also entails identifying when the cause of action accrued, because time limits run from the accrual date.

Key Term: Limitation Period
The statutory period within which a claim must be issued. Generally six years for contract or tort (other than personal injury), three years for personal injury, with special rules for latent damage. Issue protects time; service deadlines then apply under the CPR.

Common Causes of Action

For SQE1, you should be familiar with the core elements of common causes of action, particularly in contract and tort. At the pre-action stage, also stay alert to alternative or additional claims where the facts support them (for example, misrepresentation, breach of statutory duty, occupiers’ liability, or product liability).

Breach of Contract

To establish a claim for breach of contract, the claimant must typically prove:

1. Existence of a valid contract: Offer, acceptance, consideration, and intention to create legal relations. Privity is relevant to enforcement, noting that in some circumstances a third party may enforce under the Contracts (Rights of Third Parties) Act 1999.

2. Relevant term(s): Identification of the specific express or implied term(s) allegedly breached. Implied terms may arise by statute (for example, satisfactory quality and fitness for purpose in sale of goods), by custom, by previous course of dealings, or by necessity.

3. Breach: Demonstration that the defendant failed to comply with the term(s). Classification of terms (conditions, warranties, or intermediate terms) may affect whether termination is available in addition to damages.

4. Causation and remoteness: The breach must cause the loss claimed and the loss must not be too remote. The claimant cannot recover losses that are outside the reasonable contemplation of the parties at the time of contracting.

5. Loss: Evidence of the loss or damage suffered, assessed on the expectation measure (putting the claimant in the position as if the contract had been properly performed), subject to the duty to mitigate. Interest may be recoverable contractually or under statute.

Contractual claims regularly turn on implied terms related to quality or skill. For business-to-business transactions involving goods, the Sale of Goods Act 1979 implies terms as to satisfactory quality and fitness for purpose; for services, the Supply of Goods and Services Act 1982 implies reasonable care and skill. Where a consumer contracts with a trader, the Consumer Rights Act 2015 implies similar standards, with remedies tailored to consumer protection.

Liquidated damages clauses may specify sums payable on breach; unenforceable penalties will not be upheld. Unfair or unreasonable exclusion clauses may be ineffective under the Unfair Contract Terms Act 1977 (business-to-business) or the fairness test in the Consumer Rights Act 2015 (consumer context).

Negligence (Tort)

To establish a claim in negligence, the claimant must typically prove:

Key Term: Duty of Care
A legal duty to take reasonable care to avoid acts or omissions which can reasonably be foreseen to be likely to injure your neighbour (persons closely and directly affected).

1. Duty of care: A duty is owed in many familiar settings (for example, road users, professionals to clients, occupiers to lawful visitors). In novel scenarios, foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty are considered.

2. Breach: The defendant fell below the standard of care of the reasonable person in the circumstances. For professionals, the relevant standard is that of a reasonably competent professional in that field.

3. Causation: Factual causation (the “but for” test) and legal causation (no break in the chain; damage within the scope of the duty). Intervening acts may break causation; the “egg-shell skull” principle requires the defendant to take the claimant as found.

4. Damage: Recognised damage must be proved (for example, personal injury, property damage, or certain financial losses). Pure economic loss is generally irrecoverable in negligence unless arising from negligent misstatement or within certain established categories.

Loss in tort is assessed to restore the claimant to the position they would have been in had the tort not been committed. Contributory negligence may reduce damages. For occupiers’ liability, duties are framed by the Occupiers’ Liability Acts. For defective products, consider the Consumer Protection Act 1987 alongside negligence.

Multiple Causes of Action

It is common for a single set of facts to support multiple causes of action. For example, defective services may give rise to both a contractual and a negligence claim, misstatements may found claims in misrepresentation and negligent misstatement, and injuries on premises may be pleaded in negligence and under the Occupiers’ Liability Acts.

Electing to pursue concurrent claims has consequences. Remedies differ (for example, expectation damages in contract versus the tort measure), limitation may differ, and contractual terms (such as exclusions or agreed limitation provisions) may constrain the contract route more than the tort route. Double recovery is not permitted, so care is required to avoid overlapping heads of loss.

Worked Example 1.4

Maria hired QuickBuild Ltd to construct a conservatory. The contract specified completion by 1st June. QuickBuild Ltd finished on 30th June. Due to the delay, Maria missed the summer season for enjoying the conservatory and claims distress. Additionally, some roof panels leak when it rains heavily. What potential causes of action might Maria have?

Answer:
Maria potentially has claims for breach of contract against QuickBuild Ltd:

1. Breach of express term (completion date): Failure to complete by the agreed date of 1st June is a breach. Damages might cover quantifiable losses due to the delay (for example, additional accommodation costs, or verifiable consequential costs). Damages for distress or loss of enjoyment are exceptional in contract and usually arise where the contract’s object is pleasure, relaxation or freedom from distress; a standard home improvement contract rarely qualifies.
2. Breach of implied term (quality/workmanship): In a consumer contract, the Consumer Rights Act 2015 implies that services must be performed with reasonable care and skill and goods (materials) be of satisfactory quality; in business-to-business transactions, equivalent protections arise under the 1979/1982 Acts. The leaking roof suggests breach. Damages cover the reasonable cost of remedial works and foreseeable consequential losses.
   A concurrent negligence claim may also be considered if the defects caused property damage. Quantum and limitation may differ between routes. Any exclusion clauses must be assessed for reasonableness/fairness.

Other frequent pre-action causes to consider briefly

Depending on the facts:

• Misrepresentation: A false statement of fact inducing a contract and causing loss may found a claim in fraudulent, negligent, or innocent misrepresentation, with remedies including rescission and/or damages (different measures apply).
• Breach of statutory duty: For example, occupiers’ liability to lawful visitors under the Occupiers’ Liability Act 1957; or strict liability product claims under the Consumer Protection Act 1987.
• Nuisance or trespass: Where use or enjoyment of land is unreasonably interfered with, or there is direct intentional interference with land.

Identifying the right cause(s) early ensures the correct remedy is pursued within time.

Case Analysis: Pre-Action Essential

Thorough case analysis is fundamental before proceedings are considered. This involves:

1. Fact Gathering: Obtaining a full account from the client, supported by documents. Identify witnesses and preserve documents (including electronic sources). Consider early expert input if technical issues are likely.
2. Identifying Parties: Confirming the correct legal entities. Verify names, registered details, and, where relevant, insurance arrangements. Consider whether additional defendants should be joined (for example, an employer for vicarious liability).
3. Identifying Causes of Action: Determining the legal basis for the claim(s) by matching facts to the required elements. Identify the accrual date to calculate limitation accurately.
4. Assessing Merits and Risks: Evaluating the strength of the evidence for each element and considering potential defences (for example, limitation, exclusion clauses, contributory negligence, break in causation).
5. Considering Remedies: Assessing the likely recoverable damages or other remedies (for example, damages, rescission, injunctions) and whether these meet the client’s objectives. Avoid double recovery where multiple causes are pleaded.
6. Limitation and Protective Steps: Calculating limitation precisely. If necessary, issue protectively before expiry and manage the service timetable (including any agreed extensions under the CPR). In PI, limited judicial discretion may extend time; do not rely on it without strong grounds.
7. Pre-Action Protocol and ADR: Checking whether a specific pre-action protocol applies (for example, personal injury, professional negligence) and, if not, following the Practice Direction – Pre-Action Conduct and Protocols. Send a clear letter of claim, disclose key documents, and consider ADR. Courts can sanction non-compliance or unreasonable refusals to mediate in costs.
8. Jurisdiction and Enforcement: For foreign elements, consider governing law, jurisdiction, and prospects of enforcement. Where the defendant appears impecunious, reconsider viability or investigate security (for example, insurance or third-party funding).
9. Funding and Costs: Explaining funding options (for example, private retainer, CFAs, DBAs, legal expenses insurance) and the client’s costs exposure, including adverse costs risk and the impact of settlement offers.

This analysis determines if litigation is viable and informs the content of pre-action correspondence and, ultimately, the statements of case.

Key Point Checklist

This article has covered the following key knowledge points:

• Correctly identifying the legal status of potential claimants and defendants (individuals, sole traders, partnerships, LLPs, limited companies) is essential before commencing proceedings.
• Each entity type has distinct characteristics regarding legal personality, liability, and how they sue or are sued, with particular naming and service conventions.
• Consider capacity, deceased parties, vicarious liability, and whether to include an employer alongside an individual tortfeasor to maximise enforceability.
• Failure to name the correct party can result in the claim being struck out or facing enforcement difficulties; post‑limitation substitution is risky and may be refused.
• A cause of action provides the legal basis for a claim and consists of specific elements that must be proved; identify accrual to calculate limitation.
• Common causes of action include breach of contract and negligence; also consider misrepresentation, breach of statutory duty, occupiers’ liability, and product liability where appropriate.
• Concurrent causes may be available; avoid double recovery and note differences in remedies, limitation, and the effect of contractual terms.
• Thorough pre-action case analysis includes identifying parties and causes of action, assessing evidence and defences, calculating limitation, and considering ADR, remedies, funding, and enforcement.
• Pre-action protocols and the Practice Direction require early exchange of information and consideration of ADR; cost sanctions can follow non-compliance or unreasonable refusals to mediate.

Key Terms and Concepts

• Legal Entity
• Sole Trader
• Partnership (General)
• Limited Liability Partnership (LLP)
• Limited Company
• Cause of Action
• Litigation Friend
• Vicarious Liability
• Duty of Care
• Limitation Period