Pre-Action Protocols: What to Do Before Starting a Claim

Check the list of protocols in force before doing anything else. They include Personal Injury, Resolution of Clinical Disputes, Construction and Engineering, Defamation, Professional Negligence, Judicial Review, Disease and Illness, Housing Disrepair, Possession Claims by Social Landlords, Possession Claims for Mortgage Arrears, Dilapidation of Commercial Property and Low Value Personal Injury claims — plus the Pre-Action Protocol for Debt Claims for businesses chasing debts from individuals. Each protocol sets its own letter contents and timetable.

Whether under a protocol or the Practice Direction, before commencing proceedings the court will expect the parties to have exchanged sufficient information to understand each other's position, make decisions about how to proceed, try to settle the issues without proceedings, consider ADR, support efficient case management and reduce the costs of resolving the dispute.

Under the Practice Direction, the claimant's 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. Protocol-specific letters go further — for example, a debt Letter of Claim must state the amount of the debt, whether interest or charges are continuing, and enclose the protocol's Information Sheet, Reply Form and a Financial Statement form; a judicial review letter must give the date and details of the decision challenged, a clear summary of the facts and the legal basis for the claim.

Response periods vary by regime. Under the general Practice Direction the defendant should respond within 14 days in a straightforward case and no more than 3 months in a very complex one. Under the Debt Claims protocol the debtor has 30 days to reply before proceedings may be started. In personal injury claims the defendant must reply within 21 calendar days identifying their insurer, then has a maximum of three months from acknowledgment to investigate and state whether liability is admitted. In judicial review, defendants should normally respond within 14 days.

Pre-action expectations include the parties disclosing key documents relevant to the issues in dispute. Under the Debt Claims protocol this is explicit: if the debtor requests a document or information, the creditor must provide it, or explain why it is unavailable, within 30 days of receipt of the request.

Litigation should be a last resort. The parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings — options include mediation, arbitration, early neutral evaluation and ombudsman schemes. A party's silence in response to an invitation to participate in ADR, or a refusal to participate, might be considered unreasonable by the court and could lead to an order to pay additional court costs.

When the protocol steps are complete but the dispute remains, review your position before issuing. Costs incurred in complying should be proportionate — disproportionate costs will not be recoverable as part of the costs of the proceedings. Under the Debt Claims protocol, the creditor should not start proceedings less than 30 days from receipt of the completed Reply Form, or 30 days from providing any documents requested by the debtor, whichever is later.

If a dispute proceeds to litigation, the court will expect the parties to have complied with a relevant protocol or the Practice Direction, and will take non-compliance into account when giving directions and when making costs orders. The court may stay proceedings while steps are taken to comply, order the party at fault to pay costs (or costs on the indemnity basis), deprive a non-compliant claimant of interest, or award interest against a non-compliant defendant at up to 10% above base rate.