News & Insights

What is the Pre-Action Protocol?

Courts expect parties to try to resolve disputes before they decide to bring a claim. For that reason, the pre-action protocols were introduced. The pre-action protocols are procedures which the parties must follow for civil claims before they commence proceedings. The protocols take into account the court’s expectations of how parties should conduct themselves and what steps they should take. Needless to say, the importance of following the pre-action protocols should not be undermined.

Complying with the pre-action protocol normally involves:

1)      The Claimant writing a letter (usually referred to as the pre-action protocol letter or letter before claim) to the Defendant setting out concise details of the claim;

2)      The Defendant responding within a reasonable time; and

3)      The parties exchanging documents relating to the disputed issues (N.B. Consideration must be given to privileged documents and whether they can be disclosed).

By exchanging this information, parties are expected to ensure they understand their opponent’s position, try and settle matters without litigation (this may include using a form of Alternative Dispute Resolution) and reduce costs.

Failure to comply with the pre-action protocol can have serious cost consequences for parties because the courts have the power to consider pre-action conduct when making cost orders.

For further assistance, please contact Richard Gordon in the Litigation Team at Foskett Marr Gadsby & Head LLP on 01992 578 642.