Chapter 3: Pre – Action Considerations

• Pre-action protocols


  Provide guidance for pre-litigation conduct, setting out the steps that each party should take before commencing a legal action
• Pre-action protocols


  • The appropriate steps and time limits vary depending on the type of dispute involved, but the general principles are very similar
• Purpose of the protocols

  To focus the parties on trying to settle the dispute without litigation (as litigation is a last resort to be avoided whenever possible)
• Protocols


  Enable the parties to obtain the information they need to engage in negotiation
• Protocols


  Lay the groundwork for proceedings if settlement is not achievable
• Protocols should not be used to obtain unfair advantage over the other party
• Protocols do not hold the same status as Civil Procedure Rules, as they are technically Practice Directions, not rules
• Post-litigation, the court will examine the pre-action conduct of the parties, and any failure to comply is likely to have adverse costs consequences for the non-compliant party
• Common types of claims that have their own protocols


  • Personal injury
  • Construction
  • Professional negligence
• Practice Direction on Pre-Action Conduct and Protocols


  Sets out pre-action steps with a view to proportionately identifying and narrowing the issues in the case
• Practice Direction steps


  1. Claimant writes to defendant with concise details of the claim

  2. Defendant responds within a reasonable time

  3. Parties disclose key documents

  4. Parties consider using a single joint expert

  5. Parties consider Alternative Dispute Resolution

  6. Parties take stock of their respective positions before launching into court action
• If the case falls into a category for which a protocol applies, then pre-action conduct of the parties should follow the specific protocol
• Types of claims that have protocols


  • Personal injury
  • Resolution of clinical disputes
  • Construction and Engineering
  • Defamation
  • Professional Negligence
  • Judicial Review
  • Disease and illness
  • Housing disrepair
  • Possession claims (by rent or mortgage arrears)
  • Dilapidation of commercial property
  • Low value personal injury road traffic accidents
  • Low value personal injury employers' and public liability
  • Personal injury claims below the small claims limit in road traffic accidents
  • Debt claims
• Common features of the protocols


  • Template letters
  • Guidelines for pre-action exchange of information and disclosure
  • Encouragement to instruct a single joint expert
  • Reminder to consider Alternative Dispute Resolution
  • Proposed time limit for investigation and a bar to commencing proceedings until a stated period has elapsed from sending the letter of claim
• Personal Injury Protocol


  Used primarily for claims in the fast track (currently claims up to £25,000), but it does not apply to clinical negligence disputes
• Letter of Claim in Personal Injury Protocol


  Includes a clear summary of the facts, details of injuries sustained and their impact, the hospital attended, and an indication of financial losses
• Defendant's Response in Personal Injury Protocol


  Must respond within 21 days, and if no response, the claimant can start proceedings. If a response is provided within 21 days, the defendant has three months to investigate the claim, after which they must either admit or deny liability.
• Disclosure of Documents in Personal Injury Protocol


  There are standard disclosure lists that would be expected, dependent on the type of claim
• Experts in Personal Injury Protocol


  If the claimant wants to instruct an expert, the protocol provides that the claimant should strive to choose that expert jointly with the defendant
• Failure of the Personal Injury Protocol


  If the protocol fails to achieve settlement, then the claimant can issue proceedings
• Construction and Engineering Protocol


  Applies to construction and engineering disputes, and should be used instead of the professional negligence protocol
• Compliance with the Practice Direction or protocols should be proportionate and appropriate, and the parties should always comply with the spirit of the relevant protocol or the Practice Direction
• Consequences of failing to comply with the Practice Direction or protocols


  Sanctions such as ordering the non-compliant party to pay the costs (or part of the costs) of the other party, depriving the claimant of interest or restricting the rate or period of interest
• If a party does not follow the applicable pre-action protocol in whole or in part, they are at risk of being penalised in the costs that they are ordered to pay the other side or that they can recover and, if they are ordered to pay damages, may also have to pay interest at a higher rate
• Situations when there is no option but to issue court proceedings or where the court is unlikely to criticise if an action is commenced before compliance with a protocol


  Where the end of the limitation period is close, where a court order is required to protect or preserve evidence or assets, where there is concern that the defendant may seek to issue proceedings in another country to avoid the jurisdiction of the courts of England and Wales
• Pre-Action Disclosure


  An application to court for pre-action disclosure if it is felt that disclosure of documents held by the party are necessary to investigate a potential claim fully
• Pre-Action Inspection of Property


  An application to inspect property pre-action if the property in question is, or may become, the subject matter of the proceedings or is relevant to the issues that will arise in relation to those proceedings
• If the parties comply with the appropriate protocols and fail to resolve their issues, but the claimant nevertheless decides not to continue with the claim, it is unlikely that the defendant will be able to recover any costs
• Parties can make offers to settle during the protocol period and, if not withdrawn, these will have the same effect as a Part 36 offer made after issue
• Pre-action protocols are likely to feature in the SQE. A multiple-choice question may be framed around the consequences of failing to comply with the protocol or when it may be appropriate to issue proceedings