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The Pre-Action Protocols: what you need to consider before issuing a claim

There are various steps that parties to litigation are expected to take before a claim is issued, which are set out in the pre-action protocols. This article provides an overview of how to comply with the pre-action protocols.

The Pre-Action Protocols

There are currently 13 protocols in force that apply to certain types of claims, for example: personal injury claims, professional negligence claims, construction disputes, and debt claims. In cases where no specific protocol applies, the relevant steps are set out in the Practice Direction on Pre-Action Conduct.

The Aims of the Pre-Action Protocols

There are three main objectives of the pre-action protocols:

  • To encourage the exchange of full information about a prospective claim at an early stage;
  • To enable the parties to avoid litigation by agreeing a settlement before proceedings are commenced; and
  • To support the efficient management of proceedings in circumstances where litigation cannot be avoided.

Top Tips for Compliance

Set out below are a few of our top tips to ensure compliance with the pre-action protocols:

  • Always engage with the opposing party at the earliest possible time.
  • Before issuing proceedings, the potential claimant must send a Letter Before Action to the opposing party setting out the details of their claim and the remedy they are seeking.
  • The potential defendant must be given a reasonable time to respond to the Letter Before Action. This is usually 14 days in a straightforward case or up to 3 months for more complex matters.
  • Consider exchanging key documentation at an early stage. The early exchange of information may help to narrow the issues in dispute. Additionally, if disclosure of a document strengthens your case, this may assist in reaching settlement before proceedings are issued.

Failing to Comply with the Pre-Action Protocols

There can be serious consequences if a party fails to comply with the pre-action protocols. The Court can impose various sanctions on a party for non-compliance, including:

  • An order that the party at fault pays part or all of the costs of the other party;
  • An order that the party at fault pays those costs on an indemnity basis (i.e. any doubt the Court has as to whether the costs are reasonable will be resolved in favour of the receiving party);
  • If the party at fault is the claimant who has been awarded a sum of money, depriving interest on that sum for a specified period, or awarding interest at a lower rate than would otherwise have been awarded; or
  • If the party at fault is a defendant, and the claimant has been awarded a sum of money, awarding interest on that sum for a specified period at a higher rate than would otherwise have been awarded.

Our experienced commercial litigation team can help guide you through the pre-action process and ensure compliance with the pre-action protocols. If you require assistance, please call us on 020 7632 4300 or make an enquiry.

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