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

Learning Outcomes

This article covers pre-action protocols and compliance in civil litigation, including:

• The role, purpose, and requirements of pre-action protocols and the Practice Direction – Pre-Action Conduct and Protocols
• Parties’ duties of reasonable conduct, information exchange, and proportionality before proceedings
• Distinguishing general expectations from specific protocols and their typical timelines
• Setting realistic timeframes and content for letters of claim and letters of response
• Drafting clear, proportionate pre-action correspondence and identifying core documents
• Strategic deployment of ADR prior to issue and the costs consequences of unreasonable refusal
• Evaluating non-compliance, advising on sanctions, and anticipating case management or interest adjustments
• Managing limitation and urgency with protective issue and stays while maintaining protocol engagement
• Using pre-action tools proportionately, including pre-action disclosure under CPR 31.16
• Applying these principles to SQE2-style problem questions and MCQs

SQE2 Syllabus

For SQE2, you are required to understand pre-action protocols within civil procedure, including their purpose, required steps, party obligations, consequences of non-compliance, and strategic and procedural implications for clients, with a focus on the following syllabus points:

• 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
• advice to clients on compliance or on dealing with possible breaches by others
• typical timelines and content requirements across common protocols (e.g. personal injury, clinical negligence, professional negligence, construction, debt claims)
• ADR expectations and costs consequences of unreasonably refusing ADR
• interaction with limitation, protective issue and stays for compliance
• pre-action disclosure applications and proportionality
• effective drafting of letters of claim and responses using clear, modern language

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
• To support proportionate steps, including the use of ADR, to narrow issues and clarify remedies before issue

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. Courts regularly take pre-action conduct into account at later case management and costs stages, so it is important to advise clients to comply in both spirit and letter.

Steps Required under Pre-Action Protocols

Before starting a claim, the parties must:

• Exchange sufficient information to understand each other's position
• Consider alternative dispute resolution (ADR), such as negotiation or mediation
• Try to avoid unnecessary expense and delay
• 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, legal basis, remedies sought, and a reasonable response time
• Providing a letter of response addressing the issues raised, including any counter-allegations, indicating willingness to settle or pursue ADR, and identifying core documents
• Exchanging key documents relevant to the dispute to clarify issues and support early evaluation
• Considering whether experts are required, and agreeing the disciplines and scope of any initial expert input
• Keeping pre-action costs proportionate to the complexity and value of 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.

Key Term: letter of response
The defendant’s substantive reply to a letter of claim, addressing allegations, identifying issues agreed or disputed, and indicating next steps (including ADR).

Key Term: ADR (alternative dispute resolution)
Processes such as mediation, negotiation, early neutral evaluation, and arbitration used to resolve disputes without a trial.

Key Term: pre-action disclosure
An application under CPR 31.16 seeking disclosure of documents before proceedings begin, where it is desirable to dispose fairly of anticipated proceedings, assist resolution, or save costs.

Timelines and Content: Common Protocols

Although each protocol sets its own detailed steps, some widely used protocols have typical timelines and content requirements:

• Personal Injury Protocol: prompt letter of claim with a summary of facts, injuries, and rehabilitation needs; acknowledgement within 21 days; a period (often up to 3 months) for the defendant/insurer to investigate and provide a liability response; focus on rehabilitation and early settlement.
• Clinical Negligence Protocol: detailed letter of notification or letter of claim with chronology, breach and causation allegations, and expert involvement; defendant’s letter of response typically within 4 months; emphasis on expert discussions and ADR.
• Professional Negligence Protocol: letter of claim with facts, allegations, and loss; letter of response within 3 months; letter of settlement encouraged; exchange of core documents and consideration of ADR.
• Construction and Engineering Protocol (TCC): detailed letter of claim; acknowledgement within 14 days; response within 28 days; pre-action meeting within 56 days to explore settlement; exchange of key documents and expert material where proportionate.
• Debt Claims Protocol (business creditor vs individual debtor): comprehensive letter of claim with required enclosures (information sheet, reply form, and financial statement template); minimum 30 days to respond; extended time where the debtor requests debt advice; duty on the creditor to act reasonably in allowing time; no proceedings issued within 30 days of the debtor’s reply.
• Housing Disrepair Protocol: letter of claim with schedule of defects; landlord’s response within a short, prescribed period; access for inspection and early scope of works; ADR encouraged.

Where no specific protocol applies, PD – Pre-Action Conduct and Protocols expects a defendant to respond within a reasonable period; in a straightforward case 14 days is typical, while complex matters may justify up to 3 months.

Drafting Effective Pre-Action Letters

Pre-action letters must be clear, concise, and professional. Good drafting practice enhances understanding and reduces dispute:

• Use plain, modern language and the active voice; avoid jargon and archaic terms
• Structure the letter with headings, numbered paragraphs, and short sentences
• Define any technical terms only where necessary; keep definitions consistent
• Set realistic response deadlines and explain why they are reasonable
• Attach or list key documents relied upon; avoid over-disclosure of marginal materials
• Invite ADR explicitly, and propose practical options (e.g., mediation within a set timeframe)
• Keep tone restrained and objective; avoid unnecessary rhetoric and emotive adjectives
• Confirm preferred communication channels and any special confidentiality needs

These drafting principles mirror best practice for letters to other solicitors and clients, supporting clarity, precision, and proportionality.

Limitation and Urgency

Pre-action conduct does not override statutory limitation. Where limitation is imminent, a claimant may issue protective proceedings to preserve the claim, then seek a stay to allow protocol steps and ADR. Conversely, truly urgent relief (e.g., interim injunctions to prevent imminent harm) may justify issuing without full pre-action steps, but parties should explain urgency and take remedial steps afterwards.

Key Term: stay
A temporary suspension of proceedings by court order, often used to enable compliance with pre-action steps or ADR after issue.

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, including indemnity costs in serious cases
• Suspension (stay) of proceedings until proper steps are taken
• Adverse orders on interest (e.g., reduced interest for a non-compliant claimant or enhanced interest against a non-compliant defendant)
• Directions compelling ADR engagement or pre-action steps where appropriate
• In severe cases, striking out or limiting a claim or defence, particularly where deliberate and prejudicial non-compliance has caused real injustice; more commonly the court will tailor costs and case management sanctions

Courts also sanction unreasonable refusals to engage in ADR. Costs consequences can follow where a party unreasonably ignores or refuses mediation, or remains silent in response to an invitation to mediate. Recent authority confirms the court has case management powers to stay claims to facilitate ADR where fair and proportionate.

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.

Worked Example 1.3

A business creditor pursues an individual debtor for an unpaid invoice. The creditor sends only a short demand with seven days to pay, then issues proceedings on day eight without the required forms.

Answer:
This likely breaches the Debt Claims Protocol. The court may stay the claim, require proper service of the protocol-compliant letter and enclosures (information sheet, reply form, and financial statement template), and could impose adverse costs or interest orders for failure to allow the debtor 30 days to respond and obtain debt advice.

Worked Example 1.4

A defendant in a professional negligence claim receives a detailed letter of claim and a proposal to mediate. Believing the claim is weak, the defendant declines to engage in ADR and provides a brief denial letter after four months.

Answer:
While ADR is consensual, the court may consider the refusal and delay unreasonable. Costs sanctions (including interest adjustments or adverse costs orders) can follow if the defendant unreasonably refused mediation or failed to give a timely, reasoned response. A stay to facilitate ADR may also be ordered if proportionate.

Worked Example 1.5

Limitation is due in two weeks in a clinical negligence claim. The claimant has drafted a letter of claim but the hospital requests four months to investigate. The claimant issues protective proceedings and immediately seeks a stay.

Answer:
Protective issue preserves the claim. The court is likely to grant a stay to enable protocol compliance. This approach respects limitation while maintaining the expectation of meaningful pre-action engagement, including expert exchange and ADR.

Worked Example 1.6

A claimant suspects the defendant holds technical reports essential to evaluate liability in a construction dispute. No protocol response has been received within the 28-day period. The claimant considers a pre-action disclosure application.

Answer:
CPR 31.16 allows pre-action disclosure where the respondent is likely to be a party to future proceedings, the documents fall within standard disclosure, and disclosure is desirable to dispose fairly of the anticipated proceedings, assist resolution, or save costs. The court will examine proportionality and the parties’ pre-action conduct, including any failure to respond or exchange core documents. If appropriate, the court may order targeted disclosure or direct a pre-action meeting.

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. Keep correspondence clear, proportionate, and aligned with protocol timelines, and document any ADR invitations to protect against costs risks.

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. Limitation pressures may justify protective issue and a stay; urgency can justify abbreviated steps, but parties should explain why and follow up promptly to comply.

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.
• ADR is central to pre-action expectations; unreasonable refusal to engage can attract costs consequences.
• Limitation and urgency may justify protective issue or immediate relief, but courts will expect remedial pre-action engagement thereafter.

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, including clear letters of claim and responses
• How the Practice Direction – Pre-Action Conduct and Protocols applies in the absence of a specific protocol
• Typical timelines and content requirements under common protocols (PI, clinical negligence, professional negligence, construction, debt, housing)
• The role of ADR and costs risks of unreasonable refusal or silence in response to ADR invitations
• The interaction of pre-action compliance with limitation and urgent relief, and the use of protective issue and stays
• Pre-action disclosure under CPR 31.16 and its proportional use
• The types of sanctions for failing to comply with pre-action obligations
• Best-practice drafting techniques for pre-action correspondence to ensure clarity and proportionality

Key Terms and Concepts

• pre-action protocol
• Practice Direction – Pre-Action Conduct and Protocols
• letter of claim
• letter of response
• ADR (alternative dispute resolution)
• pre-action disclosure
• stay
• sanctions