PRE-ACTION CONDUCT AND PROTOCOLS
• Parties should comply when there is a relevant pre-action protocol
• When there is no relevant pre-action protocol, parties should exchange
correspondence and information to comply with the objectives of exchanging info
C sending full details in a LETTER BEFORE CLAIM to D including:-
o Basis on which the claim is made
o Summary of facts
o What C wants from D and
o If money, how much is calculated (compliance and costs incurred should be
reasonable and proportionate)
• D acknowledges letter within 14 DAYS, they must give full written response (up to 3
months for complex cases). It must include:-
o Confirmation whether claim is accepted
o If not accepted, must give explanation as to which facts are disputed and
o Whether D is making a counterclaim + details of counterclaim
• CPR 35.4(1): Court must give permission before expert evidence can be relied upon
• Court may limit fees recoverable
• Parties should consider using single, joint expert with costs shared equally
• Parties may be required to provide evidence that ADR HAS been considered
• Party’s rejection or silence in response to invitation to ADR might be considered
unreasonable by the court. Could lead to ordering the party to pay additional costs
Approach of the courts
Court expects compliance and will consider whether parties have complied in substance.
They may be more lenient where non-compliance is minor i.e injunction application
Examples of non-compliance is when party:-
• Did not provide sufficient information
• Did not act within reasonable period
• Unreasonably refused ADR/did not respond to ADR invitation
Non-compliance is taken into account when:-
• Giving directions for management of proceedings
• Making orders for costs
Consequences of non-compliance
The court will ask for explanations and may order that:-
• Parties are relieved of their obligation to comply further with the PDs
• Proceedings are stayed while particular steps are taken to comply with PD or
• Sanctions are to be applied i.e
o Defaulting to pay some or all other’s costs
o Possibly on indemnity basis
o Interest being higher or added at a higher rate up to 10% above base rate
• Parties should comply when there is a relevant pre-action protocol
• When there is no relevant pre-action protocol, parties should exchange
correspondence and information to comply with the objectives of exchanging info
C sending full details in a LETTER BEFORE CLAIM to D including:-
o Basis on which the claim is made
o Summary of facts
o What C wants from D and
o If money, how much is calculated (compliance and costs incurred should be
reasonable and proportionate)
• D acknowledges letter within 14 DAYS, they must give full written response (up to 3
months for complex cases). It must include:-
o Confirmation whether claim is accepted
o If not accepted, must give explanation as to which facts are disputed and
o Whether D is making a counterclaim + details of counterclaim
• CPR 35.4(1): Court must give permission before expert evidence can be relied upon
• Court may limit fees recoverable
• Parties should consider using single, joint expert with costs shared equally
• Parties may be required to provide evidence that ADR HAS been considered
• Party’s rejection or silence in response to invitation to ADR might be considered
unreasonable by the court. Could lead to ordering the party to pay additional costs
Approach of the courts
Court expects compliance and will consider whether parties have complied in substance.
They may be more lenient where non-compliance is minor i.e injunction application
Examples of non-compliance is when party:-
• Did not provide sufficient information
• Did not act within reasonable period
• Unreasonably refused ADR/did not respond to ADR invitation
Non-compliance is taken into account when:-
• Giving directions for management of proceedings
• Making orders for costs
Consequences of non-compliance
The court will ask for explanations and may order that:-
• Parties are relieved of their obligation to comply further with the PDs
• Proceedings are stayed while particular steps are taken to comply with PD or
• Sanctions are to be applied i.e
o Defaulting to pay some or all other’s costs
o Possibly on indemnity basis
o Interest being higher or added at a higher rate up to 10% above base rate
