When a legal dispute arises, issuing court proceedings is not always the first step. In many cases, the parties are expected to take reasonable and proportionate steps before starting a claim, with the aim of understanding the issues, exchanging relevant information and exploring whether the dispute can be resolved without litigation.
These steps are commonly governed by pre-action protocols and the Practice Direction on Pre-Action Conduct and Protocols.
What are pre-action protocols?
Pre-action protocols provide guidance on how parties should communicate and conduct themselves before court proceedings are issued. Their purpose is to encourage early engagement, clarify the issues in dispute and, where possible, help the parties reach an agreement without the need for litigation.
There are a number of different pre-action protocols covering specific types of disputes, including:
- Construction and engineering disputes
- Personal injury claims
- Professional negligence
- Clinical disputes
- Disease and illness claims
- Housing conditions claims
- Judicial review
- Debt claims
- Package travel claims
- Media and communication claims
- Low-value personal injury claims
- Certain possession claims
- Commercial property dilapidation claims
The appropriate protocol will depend on the nature of the dispute.
Why are pre-action steps important?
The pre-action process is designed to encourage parties to address a dispute at an early stage rather than immediately turning to court proceedings.
It can give each party an opportunity to understand the other’s position and may help to:
- Identify the key legal and factual issues.
- Exchange relevant information and documents.
- Clarify what is agreed and what remains disputed.
- Consider whether expert evidence is required.
- Explore potential settlement.
- Consider alternative dispute resolution (ADR).
- Avoid unnecessary costs and court proceedings where possible.
The process should be approached constructively. A pre-action protocol or the Practice Direction should not be used as a tactical device to secure an unfair advantage over another party.
Instead, parties should take reasonable and proportionate steps to identify, narrow and resolve the legal, factual or expert issues.
What are the initial steps before issuing a claim?
The precise requirements will depend on the relevant pre-action protocol. However, the process will commonly involve a Letter of Claim or Letter Before Action, a response and consideration of alternative dispute resolution.
1. Letter of Claim or Letter Before Action
The process will often begin with a Letter of Claim, also known as a Letter Before Action.
This letter sets out the claimant’s position and gives the other party an opportunity to understand the nature of the dispute and respond before proceedings are issued.
Depending on the applicable protocol, the letter may include:
- The background to the dispute.
- The legal and factual basis of the claim.
- Details of the loss or damage suffered.
- The remedy being sought.
- Relevant supporting documents.
- Any other information required by the applicable protocol.
- A proposed timeframe for a response.
A clear and focused Letter of Claim can help establish the issues at an early stage and provide a basis for meaningful discussions between the parties.
2. Letter in response
The receiving party will generally have an opportunity to respond to the Letter of Claim.
The response may:
- Accept the claim.
- Reject the claim.
- Accept part of the claim.
- Request further information.
- Raise a defence or alternative position.
- Identify areas of disagreement.
- Propose settlement or ADR.
The response can be an important opportunity to clarify which matters are genuinely disputed and what further information or evidence may be required.
3. Alternative Dispute Resolution
Parties should consider whether a dispute can be resolved without court proceedings.
Alternative Dispute Resolution (ADR) can include negotiation, mediation and other appropriate methods of resolving disputes.
ADR can sometimes provide a quicker, more flexible and less costly way of resolving a dispute than litigation. It may also allow the parties to reach a practical outcome that a court may not be able to provide.
Even where a complete settlement cannot be reached, discussions or mediation may help narrow the issues and reduce the matters that ultimately need to be determined by the court.
What happens if the parties do not comply with the pre-action process?
Parties should take care to comply with the relevant pre-action protocol where one applies.
However, the purpose of the pre-action process is not to create unnecessary technical arguments or delay. The emphasis is on reasonable and proportionate conduct.
If proceedings are subsequently issued, the court has powers to deal with failures to comply with the relevant pre-action protocol or Practice Direction.
Depending on the circumstances, the court may:
- Relieve the parties from the obligation to comply, or further comply, with the relevant protocol or Practice Direction.
- Stay the proceedings while particular pre-action steps are taken.
- Apply sanctions for non-compliance.
The consequences of non-compliance will depend on the circumstances of the individual case, including the nature and seriousness of the failure.
Why is proportionality important?
Pre-action protocols are not intended to turn every dispute into a lengthy or unnecessarily expensive process before proceedings can begin.
Parties should focus on the issues that genuinely matter and avoid unnecessary correspondence, disproportionate document requests or costs that are not justified by the nature of the dispute.
A proportionate approach can help parties establish:
What is agreed?
What is disputed?
What evidence is required?
Can the dispute be resolved without court proceedings?
By addressing these questions at an early stage, the parties may be able to resolve the dispute more efficiently or, where litigation is unavoidable, ensure that the issues requiring determination are clearly defined.
How can legal advice help?
Understanding the relevant pre-action requirements can be important when considering whether to bring or defend a claim.
Taking legal advice at an early stage can help you to:
- Identify the appropriate pre-action protocol.
- Understand your position and potential exposure.
- Assess the strengths and weaknesses of a claim or defence.
- Prepare or respond to a Letter of Claim.
- Identify relevant documents and evidence.
- Consider whether expert evidence may be required.
- Explore settlement opportunities.
- Assess whether ADR may be appropriate.
- Reduce the risk of avoidable procedural issues and costs.
Early advice can also help ensure that correspondence is focused on the issues that matter and that the pre-action process is used constructively rather than simply adding to the time and cost of a dispute.
Need advice on resolving a potential claim?
If you are considering bringing or defending a claim, taking the right steps at an early stage can help clarify the issues, manage costs and explore opportunities to resolve the dispute before court proceedings become necessary.
Ruth Jewell, Senior Associate at Knights, can advise on the pre-action process, including the relevant protocol, preparing or responding to a Letter of Claim and exploring appropriate routes to resolution.
To discuss your circumstances with Ruth, please get in touch:
Ruth Jewell
Senior Associate, Knights
D: 0116 238 8820
M: 07983 801313
T: 0116 262 4225
E: ruth.jewell@knightsplc.com
Knights
2 Colton Square
Leicester
LE1 1QH
Website: knightsplc.com
