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:

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.

About the Author

Nicola Laver LLB

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.

When you submit your details, you'll be in safe hands. Our partners are National Accident Helpline (a brand of National Accident Law, a firm of personal injury solicitors regulated by the Solicitors Regulation Authority). They are the UK's leading personal injury service. Their friendly legal services advisers will call you to talk about your claim and give you free, no-obligation advice. National Accident Law may pay us a marketing fee for our services.

By submitting your personal data, you agree for your details to be sent to National Accident Law so they can contact you to discuss your claim.

If you win your case, your solicitor's success fee will be taken from the compensation you are awarded - up to a maximum of 25%. Your solicitor will discuss any fees before starting your case.