Pre-action Protocols in Civil Litigation

The protocols in general 

The spirit of the civil litigation nowadays provides for cases to be dealt with as quickly, justly and with as little expense as possible. There are approved protocols which outline the steps the parties should take on their way of commencing proceedings. Amongst others those provide for early disclosure of documents and information. The rules exist in order to achieve better compliance with the overriding objective in civil proceedings.

The most essential role of disclosure of one party’s documents is to show the other side the case they have to meet in the event of the case proceeding to trial. Further, it allows them to prepare for it or if in their view they do not have a prospect of success – eliminate the need for proceedings at earliest stage possible by settling. The same principle applies to claimants, who can for example choose not to proceed with a claim on the basis of the other side’s defence.

In addition, pre-action protocols strongly encourage out of court settlements as well as mediation and alternative dispute resolution as means of resolving the case. As a consequence that would result in saving court’s time as well as minimising the expenses of all parties.

What are the types of protocols available? 

The published protocols exist to deal with claims in a number of areas of civil litigation. Those are currently to be found in the Civil Procedure Rules however their authority is derived from Practice Directions. At the moment there are protocols for:  

Where no protocol exists

With regards to all other cases that fall outside those limits, they are to be considered and dealt with in the same spirit as in the approved protocols and in accordance with the overriding objective. Therefore, the parties are expected to act reasonably in exchanging information about the claim, defences and counter-claim including relevant documents in support of their case and generally work towards avoiding the necessity for the start of proceedings. They are also to consider the suitability of mediation or other form or dispute resolution to resolve the issues.

However, 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.

The effect of non-compliance

Non-compliance

Non-compliance could be seen in the actions of the claimant as well as the defendant as the protocols prescribe for specific steps to be taken by either party to the proceedings. With regards to claimants those include not giving sufficient information to the defendant. While for the defendant, not making a preliminary response to a letter of claim within the specified time period or not disclosing the relevant documents, could amount to non-compliance.

In their consideration of the circumstances, the courts take into account whether there is an explanation for any unnecessary delay. 

The powers of the courts

On non-compliance cost penalties and other sanctions are available to courts. Further, on subsequent application for extension of the same or other time limit, it could be taken into account by the court. In addition, it could also affect directions for case management of the proceedings. 

Additional powers are available to the courts if it is considered that due to the behaviour of the defaulting party proceedings have been started that might otherwise not needed to be commenced. Further, those could also be used if the court believes non-compliance has led to costs being incurred that might otherwise not have been incurred. Orders that could be made in response include: 

  • the party at fault to pay the all or part of the costs for the proceedings

  • the party at fault to pay those costs on indemnity basis

  • if the party at fault is a claimant in whose favour an order for payment of damages or some specified sum is subsequently made, an order depriving him of interest on such sum and in respect of such period as may be specified, and/or awarding interest at a lower rate than would otherwise have been awarded

  • if the party at fault is a defendant and an order for the payment of damages or some specified sum is subsequently made in favour of the claimant, an order awarding interest on such sum and in respect of such period as may be specified at a higher rate but not exceeding 10 per cent above base rate.

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.