Step 4: Using Pre-Action Protocols
Pre-action protocols outline the steps both parties are normally expected to take before commencing proceedings. They provide for the exchange of sufficient information to allow the parties to:
Understand each other’s position;
Make decisions about how to proceed;
Try to settle the issues without proceedings;
Consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
Support the efficient management of those proceedings; and
Reduce the costs of resolving the dispute.
The underlying principle is that, as emphasised previously, litigation should be seen as a last resort.
In all cases, the starting point in terms of pre-action conduct is the Practice Direction on Pre-action Conduct and Protocols.
Practice Direction on Pre-action Conduct and Protocols
The Practice Direction on Pre-action Conduct and Protocols (the “Practice Direction”) applies to all civil claims and should be followed in all cases. The Practice Direction can be found here: mhttp://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct
Neither the Practice Direction, nor any pre-action protocol should be used to secure an unfair advantage over the other party. The parties should only take reasonable and proportionate steps to narrow the issues. In addition, in complying with the Practice Direction or any pre-action protocol, the parties should only incur proportionate costs; disproportionate costs will not be recoverable.
2. Before commencing proceedings
Usually, the claimant would be expected to have written to the defendant with concise details of the claim, including:
Basis for the claim;
Summary of the facts;
What the claimant wants from the defendant; and
If the claimant seeks money, how the amount is calculated.
The defendant should then respond within a reasonable time – between 14 days and 3 months depending on the complexity of the case. The reply should confirm whether the claim is accepted and, if it is not, state the reasons why. The defendant may accept only some parts of the claim and dispute the rest. If the defendant is making a counterclaim, the reply should also provide details as to such claim.
The parties should also disclose any key documents which are relevant to the issues in dispute.
3. Expert Evidence
The court must give permission before expert evidence can be relied upon and it may limit the fees recoverable. Where expert evidence is necessary, the parties should consider jointly instructing a single expert and sharing the costs equally, particularly in low-value claims.
4. Settlement and alternative dispute resolution (ADR)
The Practice Direction reiterates that litigation should be a last resort. Accordingly, the parties should consider whether the dispute may be resolved by a form of ADR, such as:
Early neutral evaluation; and/or
Parties may be required to provide evidence that they have considered a form of ADR. If a party does not respond to an invitation or refuses to participate in ADR, if considered unreasonable, it might be ordered to pay additional court costs.
It is also important to note that settlement should be considered at all times, including after proceedings have been started.
Useful link to find a civil mediator: http://www.civilmediation.justice.gov.uk/
5. Reviewing Positions and Issues in Dispute
If a dispute is not resolved by following a pre-action protocol or the Practice Direction, the parties should review their positions and evidence and seek to avoid proceedings or at least narrow the issues before proceedings are issued.
6. Compliance with the Practice Direction and the Pre-action Protocols
If a dispute proceeds to litigation, the parties will be expected to have complied with the relevant pre-action protocol or the Practice Direction. The court will take non-compliance into account when giving case management directions and making orders for costs. The parties should comply in substance with the Practice Direction and/or the relevant protocol and the court is unlikely to be concerned with minor technical infringements, especially when the matter is urgent.
The court may consider that a party has failed to comply with the Practice Direction or the relevant protocol in the following situations:
A party has not provided sufficient information to enable the objectives in paragraph 3 of the Practice Direction to be met;
A party has not acted within the respective time limit set out in the relevant protocol or within a reasonable time;
A party has refused to participate in a form of ADR or has failed to respond to such invitation.
Non-compliance may result in the Court ordering that:
The parties no longer need to comply with the Practice Direction or the relevant protocol;
Proceedings are stayed until necessary steps are taken to comply with the Practice Direction or the relevant protocol;
Sanctions are to be imposed.
Sanctions may include:
A costs order against the non-compliant party requiring it to pay some or all of the costs of the other parties;
Where the party at fault is the claimant who has been awarded a sum of money, awarding no interest on the sum for a specified period or awarding lower interest rate;
Where the party at fault is the defendant and the claimant has been awarded a sum of money, awarding a higher interest rate on that amount. The higher interest rate is not to exceed 10% above the base rate.
There are time limits for starting court proceedings. Compliance with the Practice Direction or the relevant protocol will not alter such time limits. Accordingly, if proceedings are issued in order to comply with the statutory time limit before the parties have complied with the Practice Direction or the relevant protocol, they should apply to the court for a stay of the proceedings to allow for such compliance.
8. Specific Pre-action Protocols
Case-specific protocols should be followed in addition to the Practice Direction in the following types of claims:
Resolution of Clinical Disputes
Construction and Engineering
Disease and Illness
Possession Claims by Social Landlords
Possession Claims for Mortgage Arrears
Dilapidation of Commercial Property
Low Value Personal Injury Road Traffic Accident Claim
Low Value Personal Injury Employers’ and Public Liability Claims