The days of calling your lawyer on speed-dial and having him or her dash off to court to issue a Writ are quickly fading into the past. Modern style litigation is now beset with the kind of frustrations and delays experienced by 21st century air travellers. If you are thinking of bringing a claim, be warned, the litigation departure lounge awaits in the form of the Pre-Action Protocols. As the name suggests, they apply before Court proceedings begin and the policy justification for their existence is to encourage parties to think carefully about their legal and commercial position and to try to settle before taking the plunge. This can be time consuming and frustrating if you are sure of your position and your bags are packed and ready to go.
What are the ‘Pre-Action Protocols’?
The Pre-Action Protocols are part of the Civil Procedure Rules (CPR), which govern the conduct of civil cases in England and Wales. The Protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims.
Different Pre-Action Protocols apply depending on the subject of the dispute: there is a Pre-Action Protocol for Debt Claims for example, and another for Construction and Engineering Disputes. In all, there are around 20 different specific Pre-Action Protocols.
What’s the Point?
Whichever Pre-Action Protocol applies, all are designed to encourage early settlement based on an informed understanding of each party’s position.
The Protocols compel early communication between the parties to a dispute, and establish a framework for resolving disputes pre-action without involving the Courts. Following the relevant Protocol can improve your chances of resolving a dispute without having to spend time and energy on litigation. But it also involves cost and requires patience and it can be used tactically by an opponent to buy time, gather intelligence and game the system.
What does following a pre-action protocol entail?
In broad terms, a claimant must write to a defendant with concise details of the claim including setting out the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if it is money, how the amount is calculated. The claimant is also expected to provide copies of key documents on which the claim is based.
The claimant must allow the defendant a reasonable time in which to respond – 14 days in the most straight forward case and no more than 3 months in a very complex one. In its reply a defendant should state whether the claim is accepted and, if not, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim.
What happens if you don’t follow pre-action protocols?
For reasons of policy and resource (i.e. to limit the flow of claims presented) parties are strongly encouraged to comply with the protocols. The rules on costs are used penalise parties who ignore them so throwing caution to the wind is rarely a good idea.
If the Court is satisfied that a party has acted unreasonably and failed to comply with pre-action protocols it may pause the proceedings (resulting in further delay) or impose sanctions, such as:
- Ordering the at-fault party to pay some (or all) of the innocent party’s costs
- Ordering the at-fault party to pay costs on an indemnity basis
- Restricting interest payments on damages awards.
Practical Guidance
Remember the old adage of more haste makes less speed. Tactical impatience can sometimes mar what is otherwise a strong case and can be weaponised by the opponent. Going through the phases of the pre-action protocols can also be money well spent since a clear and cogent exposition of the case at any early stage may precipitate settlement and/or flush out key aspects of the opponent's defence or approach to the dispute. What can at first appear to be pure red tape, often unlocks a swift resolution making it worthwhile to play by the rules.
