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What are the aims of the pre-action protocols?

The objectives of pre-action protocols are to:

• Encourage the exchange of early and full information about a prospective claim.
• Enable parties to avoid litigation by agreeing a settlement of a claim before the commencement of proceedings.
• Support the efficient management of proceedings where litigation cannot be avoided.

Why are the pre-action protocols important?

Before proceedings are commenced, the parties are required to act reasonably in exchanging information and documents relevant to the dispute. The aim is to avoid the need for legal proceedings by encouraging resolution of the dispute by other means.

What is the purpose of the pre-action protocol?

The parties are expected to make appropriate attempts to resolve the dispute, whether by alternative dispute resolution (ADR), negotiations, offers of settlement or a combination of these methods.

Settlement is usually a sensible option for all parties to consider at the pre-action stage, in order to save the costs of litigation and to eliminate risk. If proceedings are commenced, then the CPR and the courts encourage the parties to consider settlement options during the course of the litigation.

What is a limitation date expires during the pre-action stage?

The Practice Direction and the pre-action protocols do not alter the statutory time limits for starting court proceedings. If a claim is issued after the relevant limitation period has expired, the defendant will be entitled to use that as a defence to the claim.

If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Practice Direction or the relevant pre-action protocol, the parties should apply to the court for a stay of the proceedings while they so comply.

For advice on limitation click here.

The Pre-action Protocols

Currently, specific Pre-action Protocols are in force for specific disputes set out below. If a specific protocol does not apply, then the General Pre-Action Conduct and Protocols apply.

Protocol	Came into force
Personal Injury	6 April 2015
Resolution of Clinical Disputes	6 April 2015
Construction and Engineering	9 November 2016 2nd Edition
Defamation	02 October 2000
Professional Negligence	16 July 2000
Judicial Review	6 April 2015
Disease and Illness	8 December 2003
Housing Disrepair	6 April 2015
Possession Claims by Social Landlords	6 April 2015
Possession Claims for Mortgage Arrears	6 April 2015
Dilapidation of Commercial Property	1 January 2012
Low Value Personal Injury Road Traffic Accident Claims	30 April 2010 extended from 31 July 2013
Low Value Personal Injury Employers’ and Public Liability Claims	31 July 2013

Costs incurred with adhering to the pre-action protocols must be proportionate

PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS states as follows:

4. A pre-action protocol or this Practice Direction must not be used by a party as a tactical device to secure an unfair advantage over another party. Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues.

5. The costs incurred in complying with a pre-action protocol or this Practice Direction should be proportionate (CPR 44.3(5)). Where parties incur disproportionate costs in complying with any pre-action protocol or this Practice Direction, those costs will not be recoverable as part of the costs of the proceedings.

PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS

What if there is no relevant pre-action protocol to follow?

Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate. The steps will usually include—

(a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;

(b) the defendant responding within a reasonable time – 14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and

(c) the parties disclosing key documents relevant to the issues in dispute.

Are there consequences for not following the pre-action protocol?

If the case proceeds, when the court gives case management directions and decides what orders to make about costs, it will take into account a party’s pre-action conduct and compliance with any relevant pre-action protocol. It is, therefore, extremely important that pre-action protocols are complied with, to avoid any adverse costs consequences.

Does a party have to comply with the pre-action protocols?

If a dispute proceeds to litigation, the court will expect the parties to have complied with a relevant pre-action protocol or this Practice Direction. The court will take into account non-compliance when giving directions for the management of proceedings (see CPR 3.1(4) to (6)) and when making orders for costs (see CPR 44.3(5)(a)). The court will consider whether all parties have complied in substance with the terms of the relevant pre-action protocol or this Practice Direction and is not likely to be concerned with minor or technical infringements, especially when the matter is urgent (for example an application for an injunction).

What are the examples of a failure of compliance?

The court may decide that there has been a failure of compliance when a party has—

(a) not provided sufficient information to enable the objectives in paragraph 3 to be met;

(b) not acted within a time limit set out in a relevant protocol, or within a reasonable period; or

(c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.

What orders can a court make for non-compliance with the relevant pre-action protocol?

PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS states as follows:

16. The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which may include—

(a) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties;

(b) an order that the party at fault pay those costs on an indemnity basis;

(c) if the party at fault is a claimant who has been awarded a sum of money, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded;

(d) if the party at fault is a defendant, and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate, (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.

PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS

Instructing our Litigation Lawyers

​We​ ensure that we provide the best possible outcome for our clients by conducting in depth investigation and research into the realistic prospects of a case before selecting the appropriate course of action in order to reduce time and expense. Liability for costs is always an issue in litigation and based on our extensive litigation experience we provide our clients with as much strategic, practical as well as carefully considered legal advice in order to ensure minimum risk in respect of costs. Where appropriate we encourage the use of alternative dispute resolution (such as mediation and without prejudice negotiation) and our lawyer’s negotiation skills are first class. If early settlement at advantageous terms is not possible, we are extremely experienced and capable at navigating our clients through the litigation process.

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