Pre-action Protocol: Legal Requirements and Process

Your company may face problems with other parties when carrying out your business activities. If these are not sorted quickly, they could become a commercial dispute. To resolve these conflicts, you may consider court litigation as an effective method. If you decide on legal proceedings, you must first comply with the pre-action protocol. This is a legal requirement, and not complying can mean the court penalises you. This article will explain the legal requirements of the pre-action protocol and provide information on the process.

What is a Pre-action Protocol?

Pre-action protocols are rules contained in the Civil Procedural Rules (CPR) about what you need to do before you issue the other party with a court claim. They detail specific steps you must follow, and a failure to do so will result in a court-issued cost penalty. Importantly, pre-action protocols must be considered in line with a claim’s timeline. When you are in a dispute, you have a specific amount of time to make a court claim, which is called the limitation period. Because of this, there may be occasions where you do not have enough time to complete a pre-action protocol because the limitation period for a claim is nearly expiring. If so, you should take legal advice from a litigation solicitor. These professionals can help you apply to the court for a halt, or stay, of proceedings to allow you time to complete it. 

What is the Purpose of Pre-action Protocols? 

A key reason there are legal rules as a pre-action protocol is to encourage parties to avoid litigating their commercial disputes. Resolving a business disagreement through court proceedings takes up court resources as well as your business’s time and money. However, with pre-action protocols, you may be more inclined to find other ways to resolve your dispute, such as: 

• alternative dispute resolution (ADR); 
• reasonable exchange of information about the dispute; or
• settlement between you and the other party.

Pre-action protocols also ensure that court proceedings are managed efficiently to help each party understand the other’s arguments. 

Which Pre-action Protocol Should I Use?

There is not one pre-action protocol that applies to all types of court proceedings. Instead, the relevant protocol depends on the nature of your court claim. One of the following specialist pre-action procedures may apply to your commercial disputes:

• professional negligence;
• construction and engineering (ced) disputes;
• defamation; or
• debt claims.

However, you will likely see the general pre-action protocols suitable for all commercial claims. Your legal representative can advise you on which pre-action protocol to use.

What Does a Court Consider as Non-Compliance With a Pre-action Protocol?

A court may consider that you or the other party have not complied with a pre-action protocol where they decide that:

• the objectives for the pre-action protocol have not been met as there was not enough information to do so;
• you have not acted within the relevant timeframe or within a reasonable time; or
• there has been a failure to respond to a suggestion of the use of alternative dispute resolution (ADR).

What is the Pre-action Protocol Process?

Generally, the pre-action protocol process consists of:

• the claimant contacting the defendant in writing with a clear statement of claim;
• a response from the defendant within a reasonable time;
• parties exchanging documents about their dispute.

However, the process can be more detailed or have unique steps depending on the applicable pre-action protocol. 

The process, as a whole, is intended to help you resolve your dispute without litigation. However, if it is not successful, you should consider the following in chronological order;

• a form of alternative dispute resolution (ADR);
• arbitration; and
• as a final choice, court litigation.

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Key Takeaways

Court litigation should be a last resort when dealing with a commercial dispute. If you are, however, considering court proceedings to replace a business disagreement, you must first comply with the relevant pre-action protocol. This is a mandatory step that outlines what you need to do prior to a court claim. Pre-action protocols are a place to encourage parties in a dispute to resolve in an alternative way to court proceedings. If you do not comply with pre-action protocols, the court can punish you with a cost penalty. The pre-action protocol process will vary depending on which pre-action protocol you use. However, it tends to start with written correspondence from the claimant to the defendant detailing the claim. 

If you need help understanding pre-action protocols in the UK, LegalVision’s experienced disputes and litigation solicitors can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.