The UK Civil Procedure Rules require a Claimant to only begin litigation after notifying a proposed Defendant of the claim against it in a detailed form. This is through the use of a pre-action protocol letter, or PAP, which is a legal letter written to the Defendant in order to try and resolve a dispute before court proceedings are commenced. It is sometimes also referred to as a ‘letter before claim’ or ‘letter before action’. The PAP letter highlights the key matters that would be raised in the litigation. Failure to follow this protocol has legal consequences. One of the most important of these is that a Claimant who fails to send a PAP letter can be required to pay the Defendant’s costs even if the Claimant wins the case. This is because the court requires civil litigation to be a last resort and always encourages settlement.
While the US Federal system does allow costs to be awarded against a Plaintiff for wrongly bringing a patent claim, this is a highly unusual and restricted activity which, to my knowledge, has never occurred. Generally speaking, there are no pre-action protocols which give rise to adverse costs orders in US litigation.