Civil procedure rules Archives

Pre-Action Protocols – What the Court Expects Before a Claim Is Issued

Posted on 15 Apr 202615 Apr 2026 by Ruby Keeler-Williams

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.

Introduction to the Civil Procedure Rules in England and Wales

Posted on 10 Mar 202617 Mar 2026 by Ruby Keeler-Williams

People do not usually approach lawyers because they want litigation. They come because something has already happened and they cannot see a safe route through it. A claim may have been issued against them, or they may be locked in a dispute they cannot progress despite repeated attempts to resolve it. The problem starts to drain time and attention. At that point, most clients are not interested in legal theory. They want to know what happens next, what the process will require of them and how the risk can be contained.

What makes English litigation difficult for non-lawyers is not just the law, but the procedure. If you do the right thing at the wrong time, you can still lose ground. If you ignore procedure because it feels secondary, you can create costs consequences that overwhelm the claim itself.

This article explains what the Civil Procedure Rules are, what they are trying to achieve and why CPR Part 1 matters to anyone involved in a civil dispute in England and Wales. It is not a substitute for legal advice on the specific facts.

This is the first article in a series of articles on the CPR. The next articles in the series will deal with specific parts of the CPR in more detail, including pleadings, disclosure, witness evidence, ADR, settlement and costs.

The CPR is the rulebook for how civil disputes are run

The CPR is a procedural code. It governs how civil claims are conducted, from the way parties present their cases through to how the court manages evidence and hearings. It is the framework that turns a disagreement into a case the court can decide.

CPR Part 1 makes that explicit. It identifies the CPR as a procedural code and places at its centre the overriding objective.

The CPR is more than just an academic layer sitting above your dispute. It tells you what must be done, when it must be done and what consequences follow if it is not done properly.

One reason this matters so much is that the CPR does not simply regulate hearings. It regulates conduct from the beginning of a dispute. It influences how parties are expected to behave before proceedings are issued, how the court approaches delay and how costs are treated at the end of the case. In that sense, the CPR is more than a set of courtroom rules, it governs the entire life of a civil dispute from the point at which litigation is contemplated.

CPR Part 1 does not contain the detailed rules on service, pleadings, disclosure, evidence or costs (those appear in later parts of the CPR), but it does explain the principles the court will apply when using those later rules.

CPR 1.2 makes this explicit by requiring the court to seek to give effect to the overriding objective whenever it exercises a power under the Rules or interprets them.

For clients, this can be a useful way of understanding why procedure matters so early.

The court’s priority is management

The CPR is designed to move disputes through courts that have finite resources. That is why the rules begin with the court’s management philosophy rather than with technical procedure.

The overriding objective at CPR 1.1 requires the court to deal with cases justly and at proportionate cost. This is not a simple slogan, it is a key factor for judges when making decisions about timetables, what evidence is permitted, what steps are proportionate and how the parties’ conduct should be treated.

The priority is therefore not simply to decide who is right, but to run cases in a way that is fair to both parties and workable within the court system.

The overriding objective

The overriding objective is set out at CPR 1.1 and it underpins how civil litigation is run in England and Wales. CPR 1.1 states:

(1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

CPR 1.1(2) explains what “dealing with cases justly and at proportionate cost” means in practical terms. It includes, so far as practicable:

ensuring the parties are on an equal footing and can participate fully and that parties and witnesses can give their best evidence;
saving expense;
dealing with the case in ways which are proportionate to the money involved, the importance of the case, the complexity of the issues and the financial position of each party;
ensuring the case is dealt with expeditiously and fairly;
allotting an appropriate share of the court’s resources while taking account of other cases;
promoting or using alternative dispute resolution; and
enforcing compliance with rules, practice directions and orders.

It is worth considering what that means in reality. The overriding objective is expressly telling you that litigation must not become more expensive, or more oppressive than the dispute requires. That principle affects everything that follows, including which procedural steps are allowed and how strictly time limits are treated.

A dispute may be important to the parties and still not justify every procedural step they wish to take. A case may involve substantial sums and still need to be run proportionately. A party may feel strongly that it has been wronged and still be expected to co-operate on practical matters such as timetabling, disclosure and ADR. This is one reason the CPR can feel counter-intuitive to clients. The rules are not designed to validate the intensity of a party’s position. They are designed to ensure that the dispute is resolved in a way that is fair, efficient and workable within a finite court system.

It is also worth noting that CPR Part 1 has evolved to reflect modern concerns about participation and fairness. CPR 1.1(2)(a) now expressly refers to parties being able to participate fully and to parties and witnesses being able to give their best evidence. CPR 1.6 and Practice Direction 1A then make separate provision for vulnerable parties and witnesses. This is significant because it shows that the overriding objective is not limited to cost and speed, it is also concerned with whether the process enables the court to reach a reliable and fair outcome.

For clients, this is often the most useful single concept to understand early. Litigation is not simply about who is right. It is also about whether the case is being conducted in a way the court considers fair, efficient and proportionate.

CPR 1.2 makes clear that the court must seek to give effect to the overriding objective whenever it exercises any power given by the Rules or interprets them.

The parties’ duties

CPR 1.3 requires the parties to help the court further the overriding objective.

This matters because it places responsibility on the parties as well as the court. It is the reason the court expects:

reasonable engagement at the pre-action stage;
co-operation over procedural steps rather than manufactured obstruction;
realistic consideration of ADR; and
compliance with directions without repeated applications for indulgence.

For a lay reader, this can feel frustrating. It can seem as though the court is asking you to behave reasonably even when you believe the other side has behaved unreasonably.

The reason is straightforward – civil justice can only function if both sides conduct litigation in a way that supports fair and proportionate resolution, rather than treating procedure as a battlefield in its own right.

The court’s duty of active case management

CPR 1.4 requires the court to actively manage cases. This includes identifying the issues early, deciding which issues need full investigation and trial, fixing timetables, controlling the evidence, encouraging the parties to co-operate and encouraging the use of ADR where appropriate.

Modern courts do not simply passively wait for parties to drift towards trial. They set directions and expect compliance.

Clients sometimes interpret this as pressure. A judge wants a timetable now, not later. The court narrows issues rather than allowing everything to be fought about. This is the CPR operating as intended.

CPR 1.4(2) expands upon this by stating that active case management includes identifying the issues at an early stage, deciding promptly which issues need full investigation and trial, encouraging the parties to co-operate, encouraging or facilitating ADR, fixing timetables, considering whether the likely benefit of a step justifies its cost and using technology where appropriate. That list is useful because it shows that case management is a series of practical decisions designed to control scope, cost and delay.

Seen in that light, judicial intervention is part of the court’s attempt to keep the dispute within proper bounds. A party who wants every issue pursued to the end, every document reviewed, every witness heard and every point argued may believe that approach reflects determination. The CPR asks asks whether those steps are justified by the value, importance and complexity of the case, the parties’ financial positions and the court’s obligation to manage other cases as well.

Why compliance matters, even when you think the merits are strong

Part 1 explains why procedural compliance matters even if you believe your case is obviously right. The system is designed to ensure fairness and proportionality, which means the court is required to take account of delay, expense and non-compliance.

This is where sanctions come in. Sanctions are the consequences the court can impose when rules or orders are not complied with. They exist because without enforcement, the overriding objective becomes meaningless. Part 1 expressly includes “enforcing compliance with rules, practice directions and orders” as part of dealing with cases justly.

Clients must understand that the court cannot manage a case fairly if deadlines and orders are treated as optional. Missing a time limit, failing to comply with an order or approaching the court process casually can therefore have consequences that go beyond inconvenience.

Sanctions will be discussed in more detail in a later article in this series, but even at this introductory stage, it is important to understand what sanctions are. They are not simply punishments for bad behaviour. They are part of the court’s mechanism for preserving fairness and control. If one party ignores deadlines, fails to comply with directions, or takes procedural obligations lightly, the prejudice is not always visible immediately. It may appear later in increased costs, compressed timetables, evidential disadvantage, or hearings that could have been avoided. Sanctions are the means by which the court responds to that disruption.

This is also why procedural default is rarely viewed in isolation. The court will often be asking a broader question: what effect has this conduct had on the just and proportionate management of the case? That question sits naturally with CPR Part 1, because Part 1 is where the Rules explain what the court is trying to achieve in the first place.

Procedure also affects how the court exercises discretion

One of the things clients often discover as a case progresses is that judges make a large number of discretionary decisions. Those decisions are guided by the overriding objective.

A party that acts promptly, engages reasonably and conducts the case with discipline is generally easier for the court to manage.

A party that repeatedly misses deadlines, serves defective material or takes a casual approach to its obligations makes the court’s job harder.

That difference can matter when the court is deciding whether to grant extra time, how strictly to enforce directions and how to approach costs.

This is not simply about pleasing the court. It is about understanding the environment you are in and that litigation is a managed process. Your conduct affects how the process is managed.

Why clients should understand CPR Part 1

Clients often want to jump straight to tactics. Should we issue? Should we defend? Should we apply? Should we settle?

Part 1 explains why those questions cannot be answered properly without understanding the court’s priorities. The CPR is built around proportionality, active management, ADR and compliance.

If you approach litigation as though it is primarily about argument, you will often miss the factors that actually shape the outcome of cases.

CPR Part 1 is the foundation on which the rest of the CPR is built. It explains why the court expects co-operation on some matters and firmness on others. It explains why proportionality affects evidence, costs and procedure. It also explains why ADR is treated as part of responsible litigation conduct and why non-compliance can have consequences beyond the immediate breach.

For clients, understanding Part 1 often changes the way litigation feels. What initially appears to be a sequence of technical demands begins to make more sense when seen through the court’s priorities. The rules are not trying to make disputes harder. They are trying to ensure that disputes are resolved in a way that is fair to the parties, proportionate to the issues and manageable within a court system that must deal with many other cases at the same time.

Contact Us

If you are involved in a dispute and need advice on how the court is likely to approach procedure, proportionality and case management, Elysium Law can advise on the practical and strategic steps that follow.