Pre-Action Protocol Explained

What are the pre-action protocol

The pre-action protocol are a codified set of steps that the Court normally expect someone to take before they take the formal step of issuing legal proceedings. They apply equally to both the claimant and the defendant, so you should also know what to expect from your opponent.

The Court have provided a number of different protocols, which can be accessed on the Ministry of Justice’s website here.

So, depending on the type of claim that you may be involved in (e.g debt recovery, personal injury, construction disputes, etc), a specific protocol may apply. If your claim does not fall within the scope of any of the protocols, the court will still expect you to comply with its ‘Practice Direction – Pre-Action Conduct and Protocols’ which can be found here, which also asks that you take specific steps in dealing with opponent before legal proceeds are started.  

When do they apply

They apply to all claims, before legal proceedings are issued.

What do you need to do under the protocol

Each of the protocols are slightly different, with varying timescales. However, they normally ask you to take similar steps, including:

• Sending a letter which sets out your claim in sufficient detail for your opponent to understand the claim being made against them. How much detail you need to include will vary from case to case, but will include as a minimum (i) the amount you are claiming, (ii) how that amount is calculated, and (iii) why it is owed.

• If you are a defendant, responding to the allegations with enough detail for the claimant to understand your position.  

• Providing your response, and allowing your opponent time to respond, according to prescribed timescales;

• Requesting and exchanging key documents;

• Confirming if you are willing to engage in any alternative dispute resolution methods.

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Why should you comply with the protocol

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You may think that by complying with the protocol you are incurring costs and delay when you do not need to, particularly if you believe your opponent will simply ignore you or you already know their position. While the protocol can potentially be used by an opponent to delay and frustrate your attempts to resolve a claim, there are a number of benefits to complying with a relevant protocol.  

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First and foremost, the sanctions for not complying are very compelling, which we set out further below.

More generally, however, the aim of the protocol are to ensure that anyone involved in a potential legal claim goes in fully-informed. If you understand your opponent’s position, and vice versa, you are in a better position to try to resolve your dispute without the need for (or the cost of) legal proceedings.

You may also uncover information or evidence that makes you rethink your position, ensuring you are in the best-informed position to decide how to proceed.

What happens if you don’t comply with a protocol

If you do not comply with a relevant protocol, the Court will take the failure into consideration when making an order for legal costs in a case.

That means, even if you are successful in a legal claim, you run the risk that you may not recover all or as much legal costs as you otherwise would have. You may even be ordered to pay some of your opponent’s legal costs.

What next

If you are thinking about pursuing or defending a legal claim and need advice or help in understanding your obligations, or what to do next, we can help.

Contact us now for a free no-obligation consultation. We will listen to your enquiry, consider your individual circumstances, and provide advice on what to do next.