Procedure and alternatives - Pre-action protocols and compli...

Learning Outcomes

After reading this article, you will be able to identify and explain the role and requirements of pre-action protocols in civil litigation, the duties of parties regarding compliance, and the possible consequences for failing to comply. You will also learn how to advise clients on pre-action conduct, evaluate compliance in practice scenarios, and apply these principles in SQE2-style problem questions or MCQs.

SQE2 Syllabus

For SQE2, you are required to understand pre-action protocols as part of civil procedure. You may be asked to explain their significance, identify relevant steps, or advise on both strategic and procedural implications for clients.

As you prepare, pay particular attention to:

• the meaning and function of pre-action protocols in civil litigation
• the mandatory and recommended steps required before commencing proceedings
• the obligations on parties to act reasonably and share information before litigation
• the consequences of non-compliance, including possible sanctions and costs orders
• how to advise clients on compliance or deal with possible breaches by others

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is a primary purpose of pre-action protocols?
   1. To encourage early settlement and exchange of information
   2. To restrict communication between parties
   3. To delay the commencement of proceedings
   4. To allow for unlimited use of "without prejudice" offers

2. True or false: Failure to comply with a pre-action protocol is always fatal to a party's claim.

3. What are three potential consequences imposed by the court for non-compliance with pre-action protocols?

4. In advising a client, what initial steps should be considered under the Practice Direction – Pre-Action Conduct and Protocols?

Introduction

When a potential dispute arises, the courts expect parties to attempt resolution or clarify the issues before formal proceedings begin. This is managed through pre-action protocols—sets of rules governing the initial conduct of parties in civil litigation.

Key Term: pre-action protocol
A set of rules or guidelines prescribing the conduct, steps, and exchange of information expected of parties prior to the commencement of formal court proceedings.

These protocols aim to encourage efficient dispute resolution, minimise unnecessary litigation, and ensure the parties are adequately prepared for court if proceedings do occur.

Objectives and Structure of Pre-Action Protocols

The primary objectives are:

• To encourage early and frank exchange of relevant information and evidence
• To facilitate settlement without the need for litigation, where possible
• To ensure parties only commence court action as a last resort
• To reduce the costs, delay, and stress associated with litigation

Key Term: Practice Direction – Pre-Action Conduct and Protocols
The formal guidance, applicable where specific pre-action protocols do not exist, outlining general expectations for parties before litigation (CPR PD – Pre-Action Conduct and Protocols).

Where a dispute falls within a specific area of law (such as personal injury, construction, or professional negligence), a detailed protocol may apply. Otherwise, the general Practice Direction applies.

Steps Required under Pre-Action Protocols

Before starting a claim, the parties must:

1. Exchange sufficient information to understand each other's position.
2. Consider alternative dispute resolution (ADR), such as negotiation or mediation.
3. Try to avoid unnecessary expense and delay.
4. Comply with any specific protocol (for example, personal injury, debt, or construction), or, where none exists, follow the principles of the Practice Direction.

The steps usually include:

• Sending a formal letter of claim, clearly setting out the facts, remedies sought, and a reasonable response time.
• Providing a response addressing the issues raised, including any counter-allegations, and indicating willingness to settle or pursue ADR.
• Exchanging key documents relevant to the dispute.

Key Term: letter of claim
A formal communication from the prospective claimant to the potential defendant outlining the basis of the claim and remedies sought, initiating the pre-action process.

Consequences of Non-Compliance

Courts place significant importance on compliance. Failure to follow a protocol or the Practice Direction can lead to sanctions. The court may consider non-compliance when making orders on procedure or costs.

Possible consequences include:

• Orders to pay part or all of the other party’s costs, irrespective of the substantive result.
• Suspension ("stay") of proceedings until proper steps are taken.
• Adverse orders on interest (e.g., reduced or enhanced rates).
• In severe cases, striking out or limiting a claim.

Key Term: sanctions
Measures imposed by the court in response to a party’s failure to comply with procedural rules or court orders, including those arising from breach of pre-action requirements.

Worked Example 1.1

A prospective claimant in a breach of contract matter sends a vague, incomplete letter of claim, omits essential documents, and issues proceedings within one week—well before the defendant could respond. The defendant raises this with the court.

Answer:
The court may determine that the claimant failed to comply with the relevant pre-action protocol or Practice Direction. Possible sanctions include staying the proceedings until proper steps are completed, ordering the claimant to pay the defendant’s costs (even if successful), or adjusting interest. This is to maintain fairness and encourage proper conduct.

Worked Example 1.2

A landlord and tenant dispute falls outside any specific protocol. The landlord issues proceedings without providing the tenant an opportunity to reply to the initial complaint.

Answer:
The court will apply the Practice Direction – Pre-Action Conduct and Protocols. The landlord’s failure to allow a reasonable time for a response could lead to costs sanctions or a stay of the proceedings.

Revision Tip

Always check which, if any, specific protocol applies to your client’s dispute. If none applies, the general Practice Direction still governs conduct. Failure to comply is likely to have practical and costs consequences, even if your client's case is strong.

Exam Warning

In an SQE2 scenario, do not assume that lack of pre-action compliance invalidates the claim. The court considers proportionality and the actual consequences of the non-compliance. Costs orders and stays are common, but striking out is rare unless the breach is deliberate and prejudicial.

Summary

• Pre-action protocols aim to ensure parties act reasonably and exchange information before proceedings.
• Compliance reduces costs, delay, and stress; non-compliance may be sanctioned.
• Obligations apply whether a specific protocol exists or the general Practice Direction applies.
• Courts will take conduct into account in case management and costs decisions.

Key Point Checklist

This article has covered the following key knowledge points:

• The definition and objectives of pre-action protocols.
• The steps required of parties before issuing a claim.
• How the Practice Direction – Pre-Action Conduct and Protocols applies in the absence of a specific protocol.
• The types of sanctions for failing to comply with pre-action obligations.
• The importance of advising clients on compliance to avoid adverse consequences.

Key Terms and Concepts

• pre-action protocol
• Practice Direction – Pre-Action Conduct and Protocols
• letter of claim
• sanctions