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Before going to court
This information applies to England and Wales only.
There are procedures which should be followed before making an application to court. These are called pre-action protocols, and they set out what each party should do (the “protocol”) before going to court (“pre-action”).
These pre-action protocols have three main aims:
- to encourage the exchange of early and full information about the prospective legal claim
- to enable parties to avoid litigation by agreeing a settlement of the claim before the commencement of proceedings
- to support the efficient management of proceedings where litigation cannot be avoided
These have been written following Lord Woolf’s review of the civil justice system in 1996, ‘Access to Justice’. His aim was that “. . . people will be encouraged to start court proceedings to resolve disputes only as a last resort, and after using other more appropriate means when these are available”.
In order to encourage people to try to settle disputes at an early stage, before even making an application to court, a number of groups were asked by the Lord Chancellor’s Department (now the Department for Constitutional Affairs) to write pre-action protocols for dealing with specific types of dispute.
In principle, every dispute should follow the same procedure:
1. Communicating the problem to the other party, with details of the issues in dispute.
2. Requiring the other party to reply within a reasonable period of time to:
- explain whether or not they accept the issues in dispute
- if they do, to propose a settlement
- if they do not, to put their side of the case
3. If there are still issues in dispute after this initial correspondence, both parties should consider whether ADR would be an appropriate dispute resolution option.
4. If this is not appropriate, or is tried and is unsuccessful, then a court application can be made.
Between 1999 and 2003, eight pre-action protocols were written for specific types of dispute:
- Personal injury
- Clinical negligence
- Construction and engineering
- Defamation
- Professional negligence
- Judicial review
- Disease and illness
- Housing disrepair
Each protocol differs in terms of the information which needs to be exchanged, and the appropriate timescale for exchange of correspondence, but they all follow the same basic principles. Protocols also include template letters for exchanging information.
Courts have the power to impose cost penalties on parties who bring a dispute to court without going through the relevant protocol procedures.
The Lord Chancellor’s Department also consulted on whether to introduce a general pre-action protocol which would apply to all disputes not already covered by specific protocols. In fact it was decided to include the principles of pre-action protocols in the Civil Procedure Rules, which govern the way in which courts work.
In April 2003 the 30th update of the Civil Procedure Rules included the requirement that parties to any dispute should follow a “reasonable” pre-action procedure intended to avoid litigation, before making any application to court. This procedure should include “genuine and reasonable negotiations with a view to settling the claim economically and without court proceedings”. Once again, cost penalties can be applied to those who do not comply.
Details of all eight pre-action protocols, and the pre-action principles for all disputes can be found on the Department for Constitutional Affairs website: Civil Procedure Rules
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