A claim does not become ready to be issued at court simply because a party has a complaint. Before proceedings are issued, the Civil Procedure Rules (CPR) expect parties to take certain steps such as exchanging information, identifying the issues and considering whether the matter can be resolved without litigation. This is referred to as the ‘pre-action’ stage of litigation.
What should occur in the pre-action stage of litigation is set out in the Pre-Action Protocols annexed tothe CPR. There are specific Pre-Action Protocols for different types of dispute. Where no specific pre-action protocol applies, parties should follow the Practice Direction Pre-Action Conduct and Protocols (PDPACP). It sets out the conduct the court would normally expect before proceedings are commenced and the consequences that may follow where parties ignore that framework.
That point is sometimes underestimated. Parties can become overly focused on whether a claim can be issued and lose sight of whether it should be issued yet. A weak pre-action approach can create costs risk before the court has considered the merits. It can also make the later conduct of the case more difficult than it needed to be. That is one reason the rules place so much emphasis on the period before issue.
This article looks at the pre-action framework with particular focus on the Practice Direction – Pre-Action Conduct and Protocols. It explains why a party cannot simply move from complaint to proceedings without first engaging with the dispute in the way the court expects, how the Practice Direction fits alongside the CPR and why certain categories of claim, including professional negligence claims, are subject to their own specific protocols. It also considers why compliance matters in practice and what may follow where parties fail to take the pre-action stage seriously.
This is the second article in a series of articles on the CPR. The first article, which is an introduction to the CPR, can be read here.
Why the pre-action protocols exist
The purpose of the pre-action protocols is to ensure that the parties know enough about the dispute to make sensible decisions before a dispute reaches court. The PDPACP says that before commencing proceedings the court will expect parties to have exchanged sufficient information to understand each other’s position, made decisions about how to proceed, tried to settle the issues without proceedings, considered a form of ADR, supported efficient management of those proceedings that cannot be avoided and reduced the costs of resolving the dispute.
Those objectives reflect the wider philosophy of the CPR. The court is concerned with fairness, proportionality and efficient resolution. A dispute that has been properly defined before issue is easier for the court to manage after issue. The parties are more likely to understand what is actually in dispute, the pleadings are more likely to reflect the real issues and the scope for unnecessary applications is reduced.
That is the practical reason the rules do not treat pre-action conduct as a matter of etiquette. The pre-action stage is part of the court’s attempt to ensure that litigation is a last resort rather than a first reaction. Parties should consider whether negotiation or some other form of ADR might enable them to settle without proceedings and they should proceed proportionately, bearing in mind the costs that may be involved, the complexity of the matter and the need to act at reasonable speed.
The relationship between the PDPACP and specific protocols
There is not one universal pre-action protocol. The specific pre-action protocols for particular categories of dispute are:
- Resolution of Package Travel Claims;
- Construction and Engineering Disputes;
- Debt Claims;
- Media and Communications Claims;
- Personal Injury Claims;
- Resolution of Clinical Disputes;
- Professional Negligence;
- Judicial Review;
- Disease and Illness Claims;
- Housing Conditions Claims (England);
- Housing Disrepair Cases (Wales);
- Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property;
- Possession Claims by Social Landlords;
- Low Value Personal Injury Claims in Road Traffic Accidents;
- Claims for Damages in Relation to the Physical State of Commercial Property at Termination of a Tenancy (the ‘Dilapidations Protocol’);
- Low Value Personal Injury (Employers’ Liability and Public Liability) Claims; and
- Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (“The RTA Small Claims Protocol”)
The PDPACP applies where no other approved pre-action protocol governs the dispute. It also provides the general background against which pre-action conduct is assessed.
For example, a lawyer dealing with a professional negligence claim should not reach automatically for the PDPACP . There is a dedicated Pre-Action Protocol for Professional Negligence, just as there are specific protocols for clinical disputes and personal injury. Where a specialist protocol exists, that is the starting point.
The reason for that structure is that different categories of case raise different practical problems. A clinical negligence dispute, for example, is unlikely to be managed sensibly by exactly the same pre-action steps as a construction dispute or a debt claim.
The underlying expectations remain across the different protocols, specifically a focus on clarity, early exchange of information, proportionality and a genuine attempt to avoid unnecessary proceedings.
The Letter of Claim
In most disputes, the letter of claim is the point at which the case takes on proper shape. It is often the first structured presentation of the claim and the first real test of whether the dispute has been thought through.
The PDPACP requires enough information to be contained within the letter of claim for the recipient to understand the claim being advanced and to respond meaningfully. In practice, that usually means identifying the factual basis of the claim, the broad legal footing on which it is put, the remedy sought and the documents that matter or are requested. The aim is to put the other side in a position where they can see the case they are being asked to meet.
A weak letter of claim often causes difficulty later. If the letter of claim is too vague, it will leave the recipient guessing as to the issue in dispute. A letter of claim that is too aggressive tends to provoke a defensive response and does little to narrow the issues between the parties. In many cases, the pre-action stage is the last opportunity for the tone of the dispute to be set without the pressure of sunk costs and court timetables.
The Letter of Response
The duties at the pre-action stage do not fall on claimants alone. A defendant’s response to the letter of claim is equally important.
The point of the letter of response is not simply to deny liability and put the claimant to proof. A proper letter of response engages with the case advanced and says, with sufficient clarity, what is admitted, what is denied, what documents are relied on and whether some form of resolution is proposed.
A response that does not engage with the issues can be costly later. Delay or silence is rarely helpful. If the other side has enough information to put its case properly and the response fails to engage with it, that can affect how the court later views reasonableness and costs. A party that has behaved unreasonably before issue may find that the conduct returns later in the form of costs consequences or adverse case management decisions.
Pre-Action ADR
The Practice Direction expects parties to consider ADR before proceedings are commenced. That reflects both the wording of the PDPACP and the emphasis within the CPR on resolution at proportionate cost. Parties are expected to consider whether some form of negotiation, mediation or other ADR may assist in resolving the dispute without proceedings.
That will not be appropriate in every case, as some disputes require urgent relief, or cannot be resolved without a determination from the court. Sometimes, parties are so entrenched in their position that early engagement would achieve nothing. The decision not to pursue ADR should always be a considered one, as the pre-action stage is the point at which the parties have flexibility to resolve matters sensibly, whereas once proceedings have been issued, costs have accumulated and each parties position will have inevitably hardened.
ADR is still sometimes misunderstood as a sign of weakness or an indication that a party is not confident in its case. In practice, early ADR can be commercially sensible, as it can reduce cost, preserve relationships and narrow disputes even where it does not produce full settlement. The court’s concern is whether the possibility of ADR was considered seriously and proportionately, not just whether settlement was reached.
Why compliance with the pre-action protocol matters
The court can and does take pre-action conduct into account when deciding costs and case management, as set out in Paragraphs 13 to 16 of the PDPACP.
The court may order a party who has failed to comply to pay some or all of the other side’s costs, deprive a successful party of some of its own costs, order interest consequences, or stay proceedings until the steps that should have been taken have been taken. The court may also take account of whether parties acted reasonably in exchanging information and documents relevant to the dispute.
Nicole Chapman v Tameside Hospital NHS Foundation Trust
A useful illustration is Nicole Chapman v Tameside Hospital NHS Foundation Trust, an unreported County Court decision from 15 June 2016, which has nevertheless been discussed because of the costs consequences that followed.
The case concerned a personal injury claim. The claimant eventually discontinued after documents came to light which, if produced at the pre-action stage as they should have been, would have shown that the claim ought not to proceed.
The court ordered the defendant to pay the claimant’s costs despite discontinuance, reversing the usual position, because the defendant had failed to comply with its pre-action disclosure obligations and that failure had caused unnecessary proceedings and costs. This is a good example of the cost risks created by poor pre-action conduct.
Cundall-Johnson and Partners LLP v Whipps Cross University Hospital NHS Trust
The same general point appears in Cundall-Johnson and Partners LLP v Whipps Cross University Hospital NHS Trust [2007] EWHC 2178 (TCC). That case is more often cited for Jackson J’s discussion of whether the professional negligence protocol or the construction and engineering protocol applied, but the wider point on pre-action protocols is important.
Jackson J examined which protocol properly governed the dispute, considered the parties’ conduct against that background, and granted a stay so that the correct pre-action process could be followed. The judgment is a useful reminder that pre-action protocols affect the management and timing of the proceedings themselves.
That is especially relevant to professional negligence work. A solicitor who misidentifies the applicable protocol may create difficulties that are entirely avoidable. The court requires the right pre-action framework to be used so that the dispute is narrowed and managed properly before issue.
What happens where parties do not comply
If a party does not comply, the court may stay proceedings to force compliance, or penalise a party in costs, or deprive a successful party of costs it might otherwise have expected to recover.
The court does not require every step to be perfect, but will consider whether the parties acted reasonably, proportionately and in a way that gave the dispute a fair chance of resolution before proceedings became inevitable.
Conclusion
If you are considering a claim, or have received a letter of claim, early advice can make a big difference to how the dispute develops.
If you would like advice on the pre-action stage of a dispute, such as the applicable protocol, the drafting of a letter of claim or response and the practical steps to take before proceedings are commenced, please contact us today.
