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What is a Pre-action Protocol?

LITIGATION - Part 2

Pre-action protocols are a series of steps to be taken by a person who wishes to bring a claim to court. These steps are intended to be easy to follow and to ensure that everyone involved is aware of the problem in dispute and what each ‘side’ states has happened.

They are not strictly part of the Civil Procedure Rules and don't have the same status as those rules.  However, they have been put together by professionals and apply to certain types of claim. They should be followed by anyone who thinks they may have a dispute which may require litigation in court.

Currently, there are protocols in place for 12 different types of claim, meaning not all disputes have a pre-action protocol in place to follow.

If there is no pre-action protocol, parties should follow a practice direction called the ‘Practice Direction – Pre-action Conduct’.  Further information can found here

This aims to give some guidance on what should happen before anyone considers involving the courts. It states what should go into letters sent between the potential claimant and defendant.

The purpose of the pre-action protocols is very clear and covers the following:

  1. To encourage the parties to settle disputes through the use of Alternative Dispute Resolution (ADR) such as mediation and arbitration.
  2. To ensure that parties are able to get all the information needed as soon as possible.
  3. To allow suitable offers to resolve the issue to be made.
  4. To ensure that, if the issue goes to court, it can be dealt with as quickly and simply as possible

The principle behind this is that all parties should attempt to discuss a solution; settlement of the dispute is possible in all but a minority of cases. Where a party refuses to act in a suitable way and the case goes to court, the party who has failed to attempt to sort out the problem may have to pay the costs of the other party. If there is no named pre-action protocol, the Pre-action conduct - practice direction should be followed. They must ensure that everything they do is in accordance with the Overriding Objective as discussed in an earlier article.

There are some common elements throughout each of the protocols and pre-action conduct guidance, including how to write the initial letter. There is also guidance on the way a potential defendant should respond and details relating to the exchange of information and documents by the parties.

Anyone considering litigation should always ensure that they collect together all relevant information, documentation and reports and keep them safe until they need to be produced (‘disclosure’).

Most importantly, each protocol encourages the use of ADR.  In most cases, ADR will provide a more cost-effective means of reaching an agreement over the issue.  The protocols also contain a suggested timeframe during which proceedings should not be issued at court to allow the parties to consider their positions and the wisdom of proceeding.

A person wishing to consult a solicitor should be aware that it may take several weeks or months to complete the pre-action steps. Those consulting a solicitor often believe they will be able to jump straight into court proceedings and obtain a ‘fix’ from the court. This is no longer the case, and a person would be badly advised to attempt to do this.

Where a person is unrepresented (that is, they do not have a solicitor guiding them through the pre-action steps), they should still try to follow appropriate pre-action conduct.  However, it is advised to seek legal advice on such matters.

Pre-action protocols are simply steps to be completed before issue of a claim at court. They are written in an understandable way and are there to ensure that as many problems as possible can be resolved without the need for a court hearing.

Author: Suzanne Alexander

Lecturer in Civil Litigation

Worcester Law School    

DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. 

Published on 11th February 2015
(Last updated 28th March 2018)

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