pre-action protocols

Pre-action protocols in force in England require that the claimant and defendant prior to commencing legal proceedings, take steps to exchange information and documents prior to commencing proceedings. The purpose of the pre-action protocols is to create an opportunity for the claimant and defendant to settle their differences before the commencement of litigation. The exchange of information and evidence promotes the prospects of settlement prior to issuing the proceedings. Compliance means that intending litigants are placed in a position where the prospects of success may be assessed prior to committing court resources to resolving the disputes between the parties.

Essentially, the pre-action protocols require the parties to cooperate to exchange information, rather than simply issue legal proceedings without expressing their cases to one another and exchange relevant information. The parties are then in a position to make an informed decisions as to whether to commence proceedings, and to further explore options to settle the dispute without recourse to courts.

Aims of Protocols

In the event that the parties are able to settle their disputes without resort to litigation, they will save a great deal in legal costs, distraction of their own businesses in conducting the litigation. Compliance also supports the efficient management of proceedings where litigation cannot be avoided.

The aim of the protocols is to require the parties to adhere to the overriding objective, namely that the parties act reasonably and generally try to avoid litigation in appropriate circumstances. A court may take into account compliance or non-compliance with an applicable protocol when giving directions for the management of proceedings and when making orders for costs.

The general rule therefore is that parties must exchange information and documents prior to using proceedings. There are however exceptions to this general rule. They largely turn on whether the litigant commencing the litigation does so on reasonable grounds in the absence of compliance with the pre-action protocols. Instances of reasonable excuse instance where the claimant applies for freezing orders and search orders – applications for interim relief of these sorts would be rendered futile if it were the case that the defendant had notice of the proceedings. An example of a departure from the general rule applies in intellectual property claims relating to trade mark infringement, patent infringement and infringement of registered design rights. In claims for infringement of these registered intellectual property rights, notifying that the defendant that the claimant intends to issue proceedings amounts, in certain circumstances gives rise to a threats action. That is to say that if a threat to sue is made, it may give rise to a claim by the defendant or any third party suffering damage as a result of the threat against the claimant themselves. By way of a further example, if a limitations period is about to expire, the parties may also be excused from compliance with the protocols. So, in circumstances such as these, the claimant may well be unwise to attempt to comply with the pre-action protocols, accompanied by a threat to commence proceedings, as the threat would give rise to a counterclaim against it or damages, in the event that the case for infringement did not succeed.

Application to Parties

It is not just the claimant that must comply with the pre-action protocols, but the defendant as well. Such compliance would probably be discharged by give detailed reasons for denying a claim, and enclosing key documents relied on by the defendant in asserting his defence. Documents disclosed by way of pre-action disclosure may not be used for any other purpose, other than the resolution of the disputes between the parties (paragraph 4.6). Making Part 36 Offers and payments are encouraged by the parties.

Specific Pre-Action Protocols

The courts in England expect all parties to prospective parties to comply with the pre-action protocols. The protocols apply generally, however the specific protocols are in force for eight separate types of litigation. The specific protocols apply to litigation in respect to:

1. personal injury;
2. defamation;
3. clinical negligence;
4. judicial review;
5. housing disrepair;
6. construction cases;
7. professional negligence;
8. disease and illness;
9. possession Claims based on rent arrears;
10. possession claims based on mortgage or home purchase plan arrears in respect of residential property.

Where a case does not fall into one of these categories, the procedures set out in the general pre-action guidance should be adhered to; a failure to do so may have the same result as a failure to comply with a specific pre-action protocol.

Compliance with the protocols require the intending claimant to write a detailed letter setting out the factual basis of the claim giving rise to liability in law and enclosing the important documents supporting the claim. Not all cases require the same approach, and a proportionate approach discharges the duty to comply with the protocols.

In the event that a party does not, the court may impose cost penalties upon the claimant. These include indemnity costs orders, a denial of an award of costs even in the event of success on the substantive legal issues in dispute between the parties.

The protocols apply during the course of litigation and case management and not simply before the commencement of litigation.

Judicial Review Pre-Action Protocol

An example of the requirements of one of the specific pre-action protocols is as follows. The judicial review pre-action protocol applies to claims for judicial review. Judicial review allows litigants with a sufficient interest in a decision or action by a public body to ask the court to review (1) the lawfulness of a decision, action or refusal to act or the lawfulness of an enactment. The judicial review pre-action protocol requires the parties to consider whether some other form of resolving the dispute to more appropriate, such as mediation, engaging in an ombudsman scheme, assessment by an independent expert, mediation or negotiation.

The claimant should write a letter setting out the details of the claim, setting out the issues in dispute, the action that the defendant is expected to take, notify the defendant of other relevant parties, request for information in the hands of the defendant and the reasons why the decision reached by the public body was reached, and the date why which a response is required. The intended defendant should reply with details of the person or persons who made the decision, set out reasons why the reasons why the issues asserted by the claimant are not accepted, or accept such matters, and set out the details of

Failures to Comply

Where proceedings have been commenced in the absence of compliance by one of the parties where they might not have needed to be commenced or costs have been incurred that might not have been the court may orders that:

1. the party at in default of compliance pay the costs of the proceedings or part of those costs, or the costs of other parties;
2. costs be paid by the party in default on an indemnity basis;
3. a successful party be deprived of interest on a damages award or at a lower rate of interest that would otherwise have been awarded;
4. an unsuccessful defendant pay a higher rate of interest, not in excess of 10% above base rate, than the rate of interest would otherwise have been awarded.

Common failures to comply with the Pre-Action Protocols include failing to provide sufficient information, failing to respond to correspondence within the fixed time allowed by that correspondence, refusing to deliver copies of relevant documents, or not following the procedural steps required by the relevant protocol.

Assuming that a claimant claims is owed £10,000 by the defendant, examples of failures to comply with the pre-action protocols would be as follows:

1. Rather than writing a letter before action setting out the details of the claim, the claimant issues proceedings without prior notice to the defendant. It is likely that the claimant would be deprived of interest on a damages award if he was successful, and it is arguable that the claimant should be deprived of the entire costs incurred in pursuing the proceedings.
2. A claimant writes a letter before action to the defendant, but the defendant fails to respond to that letter. Provided that the claimant is successful in recovering the debt, that defendant mat well be ordered to pay penalty interest on the award for damages.
3. The claimant writes a letter before action setting out the basis of the claim. The defendant writes back setting out the details of the defence. The claimant then writes to the defendant seeking copies of documents to support the defence, but the defendant refuses to do so. In the event that the claimant is successful, he is likely to receive, in the absence of special circumstances, an increased cost award as the defendant did not behave reasonably prior in pre-action correspondence.

Conclusion

A claimant is well advised not to commence legal proceedings in England prior to writing to the intended defendant and informing them of his claims; exceptions to this general rule apply. Those exceptions are limited to circumstances where the defendant has good cause not to comply with the pre-action procedures. Parties generally adhere to the requirements of the pre-action protocols in English litigation. If they do not, the defendant will certainly rely on that non-compliance when it comes time for the court to consider the question of whether or not the party failing to comply should be awarded their costs, or a reduced costs order.