Provisions the documents cite: paras 1–2 (pre-action protocols; this Practice Direction applies where no approved protocol applies), para 3 (objectives), paras 4–5 (proportionality), para 6 (steps before issuing a claim), para 7 (experts), paras 8–11 (settlement and ADR), para 12 (stocktake), paras 13–16 (compliance and sanctions), para 17 (limitation), para 18 (protocols in force)
What it requires
Pre-action protocols set out the steps the court would normally expect parties to take before proceedings for particular types of claim, and are approved by the Master of the Rolls and annexed to the Civil Procedure Rules; this Practice Direction applies to disputes where no approved pre-action protocol applies, and a person who knowingly makes a false statement in a pre-action letter may be subject to proceedings for contempt of court (paras 1–2). Before commencing proceedings the court expects the parties to have exchanged sufficient information to understand each other's position, make decisions about how to proceed, try to settle the issues without proceedings, consider a form of ADR, support the efficient management of proceedings and reduce costs (para 3). Only reasonable and proportionate steps should be taken, the process must not be used tactically, and disproportionate costs of complying are not recoverable (paras 4–5). Where a relevant protocol exists the parties should comply with it; otherwise the steps usually include the claimant writing to the defendant with concise details of the claim — the basis on which it is made, a summary of the facts, what the claimant wants and, if money, how the amount is calculated; the defendant responding within a reasonable time (14 days in a straightforward case and no more than 3 months in a very complex one), saying whether the claim is accepted and, if not, why, which facts and parts of the claim are disputed and whether there is a counterclaim; and the parties disclosing key documents (para 6). Litigation should be a last resort; the parties should consider negotiation or ADR — mediation, arbitration, early neutral evaluation or ombudsmen schemes — and a party's silence in response to an invitation to take part in ADR, or a refusal, might be considered unreasonable and lead to an order to pay additional court costs (paras 8–11). If the dispute is not resolved the parties should review their positions and try to narrow the issues (para 12). The court takes non-compliance into account in case management and costs, looking at substance rather than minor or technical infringements; failure includes not giving sufficient information, not acting within a protocol time limit or a reasonable period, and unreasonably refusing ADR or not responding to an invitation to it; the court may relieve the parties of the obligation, stay proceedings while steps are taken, or apply sanctions — paying the costs of the proceedings or part of the other party's costs, costs on the indemnity basis, and where money is awarded, depriving a claimant at fault of interest or reducing its rate, or awarding interest against a defendant at fault at a higher rate not exceeding 10% above base rate (paras 13–16). The Practice Direction and protocols do not alter limitation periods; proceedings started to protect limitation before the steps are complete should be stayed while the parties comply (para 17). The Construction and Engineering protocol (2nd edition) is listed as in force from 9 November 2016 (para 18).
The instrument itself: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct. The summary above is our plain-English reading, not the text of the instrument — always work from the source.
How this entry is kept current
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The 2 documents that cite it
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