What is the Pre Action Protocol?
Pre action protocols (PAPs) are the procedures that anyone who is involved in a dispute that may lead to a civil claim being brought to court is expected to follow before entering into court proceedings.
Why do Pre Action Protocols exist?
The purpose of a pre action protocol is to provide sufficient and easy to understand guidance to all parties concerned before beginning court proceedings and to further:
- make sure that both parties have access to any required information or documents as early in the process as possible
- encourage both parties to come to an agreement via alternative dispute resolution (ADR) such as arbitration or mediation, instead of taking a claim to court
- to make it possible for appropriate offers to resolve the dispute to be made
- where the claim is taken to court, to make sure that the case is dealt with as quickly and easily as is reasonably possible
The principle behind any PAP is that both parties are provided with the chance to resolve their dispute without entering into a court case.
Are all claims subject to Pre Action Protocols?
No, only certain categories of civil claims are covered by pre action protocols. As at September 2018, there are pre action protocols in place for the following claims:
- package travel claims
- construction and engineering disputes
- debt claims
- personal injury claims
- clinical disputes
- professional negligence
- judicial review
- disease and illness claims
- housing disrepair claims
- residential property possession claims based on mortgage or home purchase plan arrears
- social landlord possession claims
- road traffic accident related low value personal injury claims
- damages claims relating to the physical state of commercial property at the end of a tenancy
- low value personal injury (Employers Liability and Public Liability) claims
What about claims where there is no Pre Action Protocol in place?
Where a claim is made that does not fall into one of the above categories and no pre action protocol exists, both parties will be expected to adhere to the Practice Direction on Pre Action Conduct.
The Practice Direction on Pre Action Conduct expects that both parties will act in a reasonable manner when providing and exchanging information related to the claim and again encourages the resolution of the dispute through mediation or some other method of ADR.
What is included in a Pre Action Protocol?
Although all pre action protocols have the same intention, i.e. to resolve disputes without court involvement or where a claim is taken to court, to make sure that everything is in place for the case to be dealt with quickly and easily, each PAP may vary depending on the area of law that it covers.
For instance, a pre action protocol for a package travel claim may discuss medical treatment, whereas a construction and engineering dispute PAP would not.
Generally, the sections of a pre action protocol would include, but not be limited to:
- Introduction – outlining the conditions under which the specific claim may be made, for instance, the limit of the monetary amount that the claim has been made in relation to, and any exceptions
- Compliance – the expectations of the court and the consequences of non-compliance
Proportionality – this section states that the process of the pre action protocol must not be used by either party to gain an advantage over the other party, including acting in a way that leads to unnecessary expense
- Definitions – an explanation of any terms used in the PAP
- Aims – see our previous section, ‘Why do Pre Action Protocols exist?’
- Scope – the conditions under which the protocol applies
- The time period involved
- Communication between the parties, for instance, the form it may take
- The relevant documents, such as the letter of notification, letter of claim and letter of response
- Pre action meetings – the timing and conditions of any such meetings
- Disclosure – the conditions under which disclosure of documents or information is made by either party
- Experts – the conditions under which expert advice may be used by either party, for instance, where a medical expert such as a doctor is called upon
- Alternative Dispute Resolution – the conditions under which the parties could seek to resolve their dispute without commencing court proceedings
- Stocktake – what steps both parties should take where the dispute can’t be resolved out of court
- Template letters of claim and response
- Specimen standard disclosure list
- Examples of other required documents
What are the consequences of non compliance with a Pre Action Protocol?
Where a claim is taken to court, the judge will assess whether both parties have complied with the relevant pre action protocol.
Where it is decided that non compliance has occurred, the court may penalise the non compliant party, relieve both parties from compliance to the pre action protocol, or delay proceedings until the situation can be rectified.
What form could non compliance take?
Examples of non compliance include:
- either party not supplying sufficient information to the other party, or to the court
- either party not responding within the required time limits
- the non disclosure of required documents, such as a letter of response
- unreasonable unwillingness to enter alternative dispute resolution, such as mediation
What penalties could the court enforce in the case of non compliance?
Where the court deems non compliance to have occurred, they have the power to use any of the following penalties:
- order that the party deemed guilty of non compliance pay the costs of the court proceedings, or pay part of the costs of the other party
- order that the party deemed guilty of non compliance pay costs on an indemnity basis
- where the non compliant party is the claimant, the court may reduce the amount of interest awarded
- where the non compliant party is the defendant, the court may order that interest, or extra interest, be paid on the amount awarded to the claimant
How long will the Pre Action period take?
The length of time that the pre action period (following the guidance laid out in the pre action protocol) can take is anywhere from a number of weeks to a number of months, taking into consideration any time limits set out in the protocol itself.
Where there is a pre action protocol in place, and even where there is no protocol and the Practice Direction on Pre Action Conduct must be followed instead, there is no way to take the claim straight to court.
Any court will not accept a claim hearing unless they believe the relevant protocol or Practice Direction on Pre Action Conduct has been complied with.
Do I have to follow the Pre Action Protocol if I don’t use a solicitor?
When attempting to settle a dispute that may lead to a claim court case, it is always recommended that you take legal advice.
Should you decide not to use a solicitor, you will still be expected to follow the relevant pre action protocol.
Why take legal advice?
Seeking specialist legal advice when attempting to resolve a dispute that may lead to a claim can assist your case in many ways. Whether you are the claimant or the defendant, a solicitor will guide you through the whole pre action protocol process, from compiling the correct information and documents, to dealing with the other party, ensuring compliance, alternative dispute resolution, and where needed, representing you in court.