Pre-action protocols in civil litigation

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:

  • allow cases to be dealt with as quickly, justly and cheaply as possible;
  • ensure both parties have access to the documents and information they need at an early stage;
  • encourage the use of alternative dispute resolution (ADR), such as mediation and arbitration;
  • allow appropriate offers to resolve the issue to be made.

What protocols are available?

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:

  • 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;
  • low value personal injury road traffic accident claims;
  • low value personal injury (employers’ liability and public liability) claims.

Where no protocol exists

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.

The effect of non-compliance

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:

  • payment of part or all of the costs of the proceedings by the defaulting party;
  • payment of such costs on an indemnity basis;
  • where the defaulting party is the claimant, the amount of interest awarded can be reduced or extinguished; and
  • where the defaulting party is the defendant, interest on damages be payable at a rate not exceeding 10% 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.