Pre-action protocols explain the conduct of litigation proceedings and set out the steps the court would normally expect parties to take before commencing proceedings for civil claims.
Prior to commencing proceedings, the court expects the parties to have exchanged sufficient information to—
(a) understand each other’s position;
(b) make informed decisions about how to proceed with the matter;
(c) try to settle the issues relating to the dispute without the need for formal proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement; and
(f) reduce the costs of resolving the dispute.
Where there is a relevant pre-action protocol for the specific type of civil claim, the parties should comply with the relevant protocol before commencing proceedings. If the parties do not follow the pre-action protocol and proceedings are commenced then the proceedings could be stayed until the parties have complied with their obligations under the pre-action protocol and / or there could be an adverse costs order made against that party. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives set our above. The steps will usually include—
(a) the claimant writing a letter before claim to the defendant specifying concise details of the heads of claim. The letter should include: (i) the legal grounds for the claim; (ii) details of the facts to support the claim including any relevant evidence; (iii) what the claimant is claiming from the defendant, including calculations to support a monetary claim;
(b) the defendant responding within a reasonable time. The reply should include confirmation as to whether the claim or any aspect thereof is accepted. If it is not accepted, then the defendant should explain the reasons why and provide suitable supporting evidence to defend the claim. In the event that the defendant wishes to make a counterclaim then the defendant should provide details of the counterclaim with suitable supporting evidence;
(c) the parties disclosing key documents and evidence relevant to the issues in dispute.
The overarching principle is that litigation should be a last resort. As part of a relevant pre-action protocol, the parties should consider and evaluate whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings. The parties should continue to consider the possibility of reaching a settlement whether via ADR or otherwise at all times, including after proceedings have been started. It should be noted that Part 36 offers can be made before proceedings are issued and this could put pressure on the parties to settle the matter.
The different forms of ADR include—
(a) mediation, where a third party facilitates a resolution between the parties;
(b) arbitration, where a third party decides the terms of settlement of the dispute and the parties are bound by this decision;
(c) early neutral evaluation, where a third party, such as a specialist barrister or solicitor, gives an informed opinion on the dispute which potentially influences the settlement of the dispute; and
(d) Ombudsmen schemes.
Summerfield Browne Solicitors have offices in London, Birmingham, Oxford, Cambridge, Northampton and Market Harborough
