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Civil Procedure notes on Pre-action protocol
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Civ Session 1 Pre-action protocolsPre-action protocols (PAP)
• Explain the conduct and set out the steps the court would normally expect parties to take before
commencing proceedings for particular types of civil claims.
• Designed to encourage the early settlement of cases before proceedings are commenced in court
o a party to a dispute will only be prepared to think about settlement IF they understand the other side’s
position and have sufficient info to enable them to carry out at least a preliminary assessment of the
strengths and weaknesses of it
Overall themes
• Litigation should be the last resort for parties in dispute
• ‘cards on the table’ approach
• Proportionality – cost-benefit analysis is required (applies even before proceedings are issued Para 4
PDACP)
o i.e., the costs spent at ANY stage of a claim including pre-action stage should be proportionate to
matters such as
§ value of claim
§ complexity and importance of the issues
§ benefits to be gained
o relevant to court’s role in active case management and assessment of costs of litigation
The 15 Protocols currently have broadly similar provisions directing parties to exchange info and use ADR to
resolve matters w/o court proceedings (although detailed provisions on what info needs to be exchanged and
the suggested timescales for doing so AND the direction given wrt to ADR varies btw protocols)
NB: for our syllabus à only one we need to know in detail = PAP for PI
What if there is no protocol for a particular type of dispute?
e.g., common tort claims such as nuisance or trespass OR general contract claim for defective goods/services
In disputes where no pre-action protocol approved by the Master of the Rolls apply, the normal Protocol Steps
are that:
• Parties are expected to exchange sufficient info to enable them to:
o understand each other's position,
o make decisions about how to proceed,
o try to settle issues without proceedings, consider a form of ADR to assist, and
o to be able to enter into meaningful negotiations or ADR processes,
o support the efficient management of those proceedings and reduce costs of resolving dispute
• parties should take reasonable and proportionate steps to identify, narrow and resolve the legal, factual
or expert issues
• Costs in complying with the protocol MUST be kept proportionate
o disproportionate costs incurred will NOT be recoverable as part of costs of proceedings
BEAR in mind requirement of proportionality! – it would not be proportionate to require a party (as part of pre-
action conduct) to exchange the same amount of info that would be provided in due course during the litigation
NB: taking tactical advantage is deprecated – PAP/PD must NOT be sued to secure an unfair advantage over
another party
,Steps BEFORE issuing a claim at court
1. Exchange of info and correspondence where NO relevant PAP
2. C should send a letter of claim to D w/ concise details of the claim and the remedy sought
3. D should send a written response within a reasonable time (14 days in an easy case, maybe 3 months in
a v complex claim so D can investigate)
• The response MUST specify:
o IF liability is admitted
o The grounds on which liability is denied
o Whether a CC will be advanced
4. Both parties must disclose key docs to each other
5. If an expert is necessary, parties should try to minimize how much expert evidence will cost
• Single joint expert may be best (especially for low value claims – lower than £25k)
• Court may limit the recoverable fees
• Many disputes can be resolved w/o expert advice or evidence
• Parties must consider and discuss the need for expert evidence and report and whether a
single report is more appropriate and proportionate than retaining an expert each
6. Parties should consider whether to use ADR at ALL stages
8 – litigation as last resort, parties should consider appropriateness of using forms of
ADR to settle dispute
9 – parties to continue considering the possibility of reaching a settlement at all times.
Part 36 offers may be made
10 – parties may negotiate to settle a dispute using various forms of ADR
11 -- parties may be required to provide evidence that ADR has been considered. Silence
in response to an invitation to participate in ADR might be considered as unreasonable
by the court and could lead to court order to pay additional court costs
à includes adjudicative AND non-adjudicative processes, ombudsmen and complaints schemes
à court can police parties’ attempts to use ADR and require the parties to provide evidence that ADR was
considered
à silence in the fact of an invitation to consider ADR might be unreasonable and lead to costs sanction
7. Whether the claim is NOT resolved by following the protocols, parties MUST stocktake by reviewing their
respective positions
8. They should at least try to narrow the issues in disputes
Important to note
Parties need to explore ADR at an early stage of the dispute
• BUT the court may well refuse to allow judicial review proceedings to continue in circumstances where ADR, in
the form of a government complaints procedure or a statutory appeal process, could have been used instead (see,
for example Cowl v Plymouth City Council [2001])
• The court may stay/suspend legal proceedings IF there is a valid ADR clause in a contract requiring parties to
attempt 1/more ADR processes and a party has acted in breach of that contract by ignoring that contractual
provision and instead proceeded directly to the issue of court proceedings
The court has a role in policing compliance
• Will regard the PAP and PDs as setting out what is reasonable in terms of pre-action conduct
How strictly must the codes be adhered to?
• The Codes of best practice are to be followed only generally, NOT slavishly - court concerned in compliance w/
spirit of a protocol than the exact letter
• Parties CAN vary the time limits suggested in PD Pre-action conduct OR in any of the specific PAP by agreement
o E.g., sometimes a D who has been aware of the claim from the outset and has alr undertaken its
investigation may need less time to respond than suggested
, Compliance with the PD and Protocols
Expectation of compliance by How is non-compliance judged?
courts The court may take in account compliance/non-compliance
If a dispute proceeds to litigation, with PDAP when giving directions for the management of
there is an expectation that parties proceedings and when making orders for costs
will/do comply with a relevant PAP/PD - ‘in particular the extent to which the parties followed
any relevant PAP’
Court will consider whether ALL
parties have complied in substance The court may decide that there has been a failure of
with the terms of the relevant PAP/PD compliance when a party has:
and is NOT likely to be concerned • Provided insufficient info to enable the other side to
with minor/technical infringements o understand each other’s position
(esp when the matter is urgent! o make decisions about how to proceed
o try to settle issues w/o proceedings/consider ADR
o support management/reduce costs
• NOT acted within a time limit set out in a relevant
protocol/reasonable period
• Unreasonably refused to use a form of ADR/failed to
respond at ALL to an invitation to do so
Consequence of non-compliance?
Potentially, a court order which
• relieves parties of obligation under protocol
• stay of proceedings while
o steps are taken to comply w/ protocol or
o sanctions to be applied
Courts are able to impose sanctions for breaches and should treat the protocols as the reasonable approach to
pre-action conduct for that type of dispute
Courts will consider the effect of non-compliance on the other party when deciding whether to impose any
sanctions which may include:
• order that party at fault pays costs of proceedings in full or in part,
• to pay these costs on an indemnity basis
o so that any doubts about whether costs were reasonably incurred or in amount are resolved in
favour of the party receiving an order for costs à higher costs
• order depriving party which has been awarded a sum of money of interest on that sum or awarding
interest at a lower rate,
• if party at fault is a D and C awarded sum of money, court might award higher interest on that sum for
specific period of time not exceeding 10% above base rate
CPR r.3.1 provides:
“(4)Where the court gives directions it may take into account whether or not a party has complied with any
relevant pre-action protocol;
(5)The court may order a party to pay a sum of money into court if that party has, without good reason, failed
to comply with the appropriate rule, practice direction or relevant pre-action protocol.”
NB: Parties will be asked to state if they have complied with relevant protocol in their Directions Questionnaire but not
whether the other party has not complied and whether the court is being invited to apply a sanction.
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