Back to Basics: The Importance of Conducting a Conference Before Issuing Proceedings & Drafting Pleadings

September 29, 2025

by Nia Marshall

Barristers are often instructed to draft Particulars of Claim in personal injury fast track claims. Those instructing us provide us with various documentation which sometimes includes a draft of the witness statement. Although some drafts may be detailed, sometimes the circumstances giving rise to the accident are surprisingly vague. Most instructing solicitors are often mindful about the rules which govern fixed costs and disbursements on the fast track and the inherent difficulty of  seeking to recover costs (from the opposing party) which fall outside of the scope of fixed costs. Therefore, it is understandable that some solicitors may be hesitant to organise a conference to facilitate a discussion between the barrister and the lay client. However, these conferences are essential especially when the documentation provided does not provide all of the information required to produce a persuasive Particulars of Claim.

Additionally, an early conference will not only assist with drafting the Particulars of Claim, but also the drafting of the witness statement. Following the conference, the solicitor can prepare a witness statement based upon the detailed instructions given at the conference. The instructing solicitor will only need to add to it once the Defence and disclosure have been filed and served. Given that many solicitors have a busy case load, this would prove to save time in the future.

Case In Point

I was recently instructed to represent a Claimant at trial who was injured at work. I was not previously instructed to draft the Particulars of Claim or to provide any advice on the claim pre-issue. The thrust of the Particulars of Claim focused on the Claimant’s lack of training, lack of safety equipment  and lack of risk assessment. During the pre-trial conference, it was apparent that the Claimant was uncertain about the circumstances which led to the injury.

When the Claimant gave evidence, he indicated that he was given training. The Claimant expressed that he was injured due to the defective equipment which was provided by the employer. The Defendant’s barrister raised concerns that the Claimant’s pleaded case was different to the case which was being put by the Claimant. In the absence of pleading the necessary regulations for defective equipment, the Defendant submitted that they were ambushed as the nature of the Claimant’s case changed.

The Judge indicated that the Claimant may have to make an application to rectify the Particulars of Claim if the Particulars of Claim did not sufficiently cover the change in the Claimant’s case. The Judge acknowledged that arguments could be made that the Particulars of Claim were sufficiently wide enough to potentially cover the change in the Claimant’s case. Nevertheless, the Defendant’s barrister was considering not calling her client to give evidence on the basis that there may be potentially no case to answer. This view was taken due to the change in the Claimant’s case.  The case was stood down so that instructions could be taken.

The Defendant made the Claimant a drop hands offer if the claim was discontinued. The Defendant indicated that if the Judge found that the basis of the case changed then she was instructed to seek that Qualified one-way costs shifting (QOCS) should be disapplied pursuant to CPR 44.15. Although the Claimant was advised that QOCS is usually rarely disapplied, the Claimant instructed his legal representatives to accept the drop hands offer as he could not financially afford to take the risk.

After the Judge was informed of the Claimant’s decision to discontinue his claim, he stated that it was a shame that the whole story wasn’t gathered regarding the accident circumstances (at the beginning of the litigation process).

The implications of the Claimant’s failure to properly inform the legal representatives about the accident circumstances led to the discontinuance of a potentially successful claim. It hindered the scope and precision of the Particulars of Claim.  It also inhibited a thorough evaluation of the claim and the implementation of an effective case strategy.  A conference would have revealed the intricacies of the accident circumstances. It would have also facilitated the drafting of a witness statement which included the circumstances which led to the injury.

Contrastingly, I have prepared Particulars of Claim following conferences with Claimants who were injured at work. These conferences provided me with essential details which contributed to persuasive Particulars of Claim and compelling witness statements. The pleadings and witness statements have contributed to successful outcomes and satisfactory settlements.

We must not underestimate the positive impact of an effective pre-issue conference in our cases.