The rules governing pre-action conduct can be found in the pre-action protocols and the Practice Direction on pre-action conduct and protocols (PDPAC).
What are Pre Action Protocols?
Pre action protocols (PAPs) specify the conduct procedures that parties are expected to follow if involved in a dispute that may lead to litigation in the English courts.
Fundamentally, the pre action protocols exist to exhaust all other resolution options and to ensure litigation is a measure of last resort. PAPs offer guidance that is easy to understand and accessible for all litigating parties on the conduct requirements before a civil claim is brought. This includes:
- ensuring all parties have access to any required information or documents as early in the process as possible
- encouraging both parties to come to an agreement via alternative dispute resolution (ADR) such as arbitration or mediation, instead of taking a claim to court
- making it possible for appropriate offers to resolve the dispute to be made
- where the claim is taken to court, to make sure that the case is dealt with as quickly and easily as is reasonably possible
Pre Action Protocol requirements
While all pre action protocols have the same intention, i.e. to resolve disputes without court involvement or where a claim is taken to court, to make sure that everything is in place for the case to be dealt with quickly and easily, each PAP may vary depending on the area of law that it covers.
For instance, a pre action protocol for a package travel claim may discuss medical treatment, whereas a construction and engineering dispute PAP would not.
Generally, the sections of a pre action protocol would cover the following, although this is not exhaustive:
- Introduction – outlining the conditions under which the specific claim may be made, for instance, the limit of the monetary amount that the claim has been made in relation to, and any exceptions
- Compliance – the expectations of the court and the consequences of non-compliance
Proportionality – this section states that the process of the pre action protocol must not be used by either party to gain an advantage over the other party, including acting in a way that leads to unnecessary expense
- Definitions – an explanation of any terms used in the PAP
- Aims – an outline of the role of the PAP
- Scope – the conditions under which the protocol applies
- The time period involved
- Communication between the parties, for instance, the form it may take
- The relevant documents, such as the letter of notification, letter of claim and letter of response
- Pre action meetings – the timing and conditions of any such meetings
- Disclosure – the conditions under which disclosure of documents or information is made by either party
- Experts – the conditions under which expert advice may be used by either party, for instance, where a medical expert such as a doctor is called upon
- Alternative Dispute Resolution – the conditions under which the parties could seek to resolve their dispute without commencing court proceedings
- Stocktake – what steps both parties should take where the dispute can’t be resolved out of court
- Template letters of claim and response
- Specimen standard disclosure list
- Examples of other required documents
Are all claims subject to Pre Action Protocols?
No, only certain categories of civil claims are covered by pre action protocols. Currently there are pre action protocols in place for the following claims:
- package travel claims
- construction and engineering disputes
- media and communications
- debt claims
- personal injury claims
- clinical disputes
- professional negligence
- judicial review
- disease and illness claims
- housing disrepair claims
- residential property possession claims based on mortgage or home purchase plan arrears
- social landlord possession claims
- road traffic accident related low value personal injury claims
- damages claims relating to the physical state of commercial property at the end of a tenancy
- low value personal injury (Employers Liability and Public Liability) claims
Where a claim is made that does not fall into one of the above categories and no pre action protocol exists, both parties will be expected to adhere to the PDPACP.
What is PDPACP?
The Practice Direction on pre-action conduct and protocols (PDPACP) came into force on 6 April 2015, replacing the Practice Direction on Pre-action Conduct 2009 as a non-mandatory guide to pre-action conduct.
The PDPACP expects that both parties will act in a reasonable manner when providing and exchanging information related to the claim and again encourages the resolution of the dispute through mediation or some other method of ADR.
The PDPACP offers guidance on what should be done if reasonable, rather than what has to be done. However, where the PDPCAP is applicable, the court has discretionary powers to issue sanctions against parties that fail to comply.
The PDPACP is structured as follows:
- paragraph three sets out the objectives;
- paragraphs four to five look at proportionality;
- paragraph six sets out guidance on pre-action procedure when no protocol applies;
- paragraph seven sets out the requirements in relation to expert evidence;
- paragraphs eight to 12 set out the guidance on settlement and ADR;
- paragraphs 13 to 16 look at the approach of the courts (namely how they will determine compliance and sanctions for non-compliance); and
- paragraph 17 addresses limitation.
Relationship between the pre-action protocols and PDPACP
If a particular pre-action protocol applies then it should be followed rather than the PDPACP. For those cases which fall outside the protocols, PDPACP is the only source with regard to the pre-action conduct that should be adopted.
Penalties for failure to comply with PAP
Where a claim is taken to court, the judge will assess whether both parties have complied with the relevant pre action protocol.
Where issues of non-compliance are established, the court may penalise the non-compliant party, relieve both parties from compliance to the pre action protocol, or delay proceedings until the situation can be rectified.
Examples of PAP non-compliance could include:
- either party not supplying sufficient information to the other party, or to the court
- either party not responding within the required time limits
- the non disclosure of required documents, such as a letter of response
- unreasonable unwillingness to enter alternative dispute resolution, such as mediation
The court has the power to impose any of the following penalties:
- order that the party deemed guilty of non-compliance pay the costs of the court proceedings, or pay part of the costs of the other party
- order that the party deemed guilty of non-compliance pay costs on an indemnity basis
- where the non-compliant party is the claimant, the court may reduce the amount of any award
- where the non-compliant party is the defendant, the court may order that interest, or extra interest, be paid on the amount awarded to the claimant
How long is the Pre Action period?
The length of time that the pre action period (following the guidance laid out in the pre action protocol) can take is anywhere from a number of weeks to a number of months, taking into consideration any time limits set out in the protocol itself.
Where there is a pre action protocol in place, and even where there is no protocol and the Practice Direction on Pre Action Conduct must be followed instead, there is no way to take the claim straight to court.
Any court will not accept a claim hearing unless they believe the relevant protocol or Practice Direction on Pre Action Conduct has been complied with.
Do I have to follow the Pre Action Protocol if I don’t use a solicitor?
When attempting to settle a dispute that may be litigated, it is always recommended that you take legal advice.
Should you decide not to use a solicitor, you will still be expected to follow the relevant pre action protocol.
Why take legal advice?
Seeking specialist legal advice when attempting to resolve a dispute that may lead to a claim can assist your case in many ways. Whether you are the claimant or the defendant, a solicitor will guide you through the whole pre action protocol process, from compiling the correct information and documents, to dealing with the other party, ensuring compliance, alternative dispute resolution, and where needed, representing you in court.