Pre action protocols are a series of approved steps that someone planning to bring a civil claim before the courts should follow. The aim of the protocols is to:
Only certain claims are subject to pre-action protocols. Where a pre-action protocol applies, the parties involved in the case are expected to follow it.
The protocols and the practice direction are annexed to the Civil Procedure Rules. Current pre-action protocols include:
Where no pre-action protocol applies, the parties are expected to follow the Practice Direction on Pre-Action Conduct. This means parties are expected to act reasonably in exchanging information about the claim, defences and counter-claim, including relevant documents in support of their case. They should also consider the suitability of mediation or another form or ADR to resolve the issues.
Since the rules are not as strict as for the other areas, non-compliance is harder to prove. Nevertheless, if a party is found to have acted unreasonable, he may be penalised in costs as well as by way of other sanctions.
With regards to claimants, non-compliance with a pre-action protocol could include not giving sufficient information to the defendant; for the defendant, non-compliance could involve not making a preliminary response to a letter of claim within the specified time period or not disclosing the relevant documents.
The courts have a range of powers to deal with defaulting parties. In their consideration of the circumstances, the courts will take into account whether there is an explanation for any unnecessary delay.
If the court feels that a party’s non-compliance with a pre-action protocol has led to proceedings being started which otherwise might not have been, or where additional costs have been incurred, a court can order:
The court will exercise the powers under these provisions with the object of placing the innocent party in no worse position than he would have been in if the protocol had been complied with.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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