Pre-action protocol objectives and sanctions

A pre-action protocol outlines specific procedures to be followed before issuing proceedings. The protocols do not amend any statutory time limits that apply.

A practice direction on pre-action conduct of cases forms part of the Civil Procedure Rules. This covers cases, with certain exceptions, where a protocol does not apply.

The objectives of the pre-action protocols are to:

• encourage the early exchange of information

• help parties to potential proceedings avoid legal proceedings, by agreeing a settlement of any claim before the start of litigation

• support the efficient management of proceedings where legal proceedings cannot be avoided

Before starting court action, where negotiations or alternative dispute resolution have failed or are not appropriate, the normal practice is to send a letter to the other party. This letter is known as a letter of claim.

It should set out the complaint or claim and make it clear that court action will be started if no response is received within a specified time (usually 14 days). It acts as a final warning to the other party that court proceedings will be started if the problem is not resolved within an appropriate time. If a client and their legal representative or adviser do not write a letter before action, this may affect the court's decision on who should pay the costs.

If alternatives to court action have not been pursued, the court may conclude that court action was unnecessary and a waste of the court's and the other party's time and resources.

If a response to the letter before action is received which offers terms of settlement, these should be fully discussed with the client and the possibilities of further negotiation explored before court proceedings are started. The client may prefer not to proceed to court if a reasonable settlement can be reached. The client should be advised that if they proceed and the court orders a similar settlement to that available before the court case, then the court can award costs against them, unless doing so would be unjust. [1]

Pre-action protocols often require a letter of claim, which must also contain all of the information and enclose all of the documents required by the protocol.

The court will expect parties to have complied with any pre-action protocol applicable to their claim.

The court can consider compliance when making any order for costs and/or giving case management directions. For example, the court can reduce the costs to be awarded to the successful party or order that the party at fault pay the costs of the proceedings.