Following Pre-Action Protocol vs Issuing a Claim Directly

Should you follow the relevant Pre-Action Protocol before issuing court proceedings, or can you issue immediately? The CPR makes failure to follow PAP a costs risk.

Overview

The Civil Procedure Rules (CPR) require parties to a dispute to follow a Pre-Action Protocol (PAP) — or, where no specific protocol applies, the Practice Direction on Pre-Action Conduct — before issuing proceedings. The purpose is to encourage the parties to exchange information, consider settlement or ADR, and avoid unnecessary litigation. Courts take PAP compliance seriously: a party that issues proceedings without following the relevant protocol risks an adverse costs order under CPR 44.4(3)(a). However, there are legitimate reasons to issue without full protocol compliance — imminent limitation expiry, risk that assets will be dissipated, or urgency. In those cases, a protective claim can be issued while PAP steps are completed in parallel.

Side-by-Side Comparison

Follow Pre-Action Protocol

Time: Protocol response periods: 14 days (debt) to 3 months (professional negligence, clinical disputes)

Pros

Protects against adverse costs sanctions — court will not penalise a claimant who properly follows the protocol
Often resolves the dispute without litigation — saving time, cost, and stress
Allows both parties to assess the strength of their case before incurring court fees
Demonstrates proportionality and reasonableness if costs are assessed later

Cons

Adds time — most protocols require 14–56 days for the defendant to respond before proceedings can be issued
May alert the defendant to dissipate assets or take pre-emptive steps
Limitation period continues to run during the protocol period

Best For

The vast majority of civil disputes — particularly personal injury, professional negligence, construction, debt recovery, and housing disrepair claims where a specific PAP applies.

Issue Proceedings Directly

Time: Claim issued immediately; but court may stay for PAP compliance

Pros

Faster — claim on record immediately; useful where limitation is about to expire
Appropriate where delay would allow dissipation of assets or other prejudice to the claimant
A protective issue does not preclude subsequently complying with the protocol before serving

Cons

Risk of adverse costs order under CPR 44.4(3)(a) if the court finds compliance was unreasonably avoided
Court may stay the proceedings to allow PAP to be completed (PD Pre-Action Conduct para 13)
Weakens negotiating position — defendant may become entrenched once served
Risk of costs penalties including indemnity basis costs in egregious cases

Best For

Claims where limitation expires within days, where there is an urgent need for an interim injunction, or where evidence shows a real risk of asset dissipation.

Key Differences

AspectFollow Pre-Action ProtocolIssue Proceedings Directly

Costs riskNo costs sanction for compliant claimantCPR 44.4(3)(a) adverse costs order risk

Time to issue14–90 days pre-action period before issueImmediate

Settlement prospectsHigher — information exchange often resolves disputesLower — adversarial from the outset

Court's responseProceedings proceed normallyCourt may impose a stay to allow protocol compliance

Limitation protectionLimitation runs during protocol period — plan aheadClaim on record stops limitation immediately

ProportionalityConsistent with CPR overriding objectiveMay be viewed as disproportionate unless justified

Our Recommendation

Follow the relevant Pre-Action Protocol in every case unless there is a specific, documented reason not to (limitation expiry, asset dissipation risk, or genuine urgency). If you must issue to protect limitation, issue immediately but serve the PAP letter at the same time and apply to stay proceedings pending protocol completion — this minimises the costs risk.

Official Resources

Practice Direction — Pre-Action Conduct and Protocols →CPR 44.4 — Basis of Assessment →Pre-Action Protocols — HMCTS →