Pre-action Protocols

Author:Mr Martin Thomas
Profession:Herbert Smith
 
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Pre-action Protocols were introduced as part of the Woolf Reforms in 1999. The intention was that, by requiring parties to enter into a formal exchange of correspondence setting out their respective positions in relation to claims, and providing where appropriate for the disclosure of documents and witness evidence, the parties could properly evaluate their cases at an early stage and potentially settle their differences without actually needing to issue proceedings. That would save the parties money and reduce the administrative burden on courts. Of course, prior to 1999, it was common for the claimants to write letters before action, the purpose of a Protocol is to take that a stage further and in particular to require a formal response. The frameworkThe procedural rules relating to Protocols are set out in the Pre-action Protocol Practice Direction. There are, however, relevant passages elsewhere in the CPR. In particular, Part 44, which deals with the question of recoverability of costs, contains specific references to pre-action behaviour and correspondence; and Part 31 contains provisions for pre-action disclosure. Both of those Parts are referred to in more detail below. Is there a Pre-action Protocol?The rules on pre-action behaviour differ according to whether there is an approved Protocol in place. At present there are compulsory Protocols for the following:Personal injury claims Clinical disputes Defamation Construction & Engineering disputes Judicial Review Professional negligenceThere are also a number of draft Protocols (e.g. for debt claims) whose use is not compulsory. The Lord Chancellor's Department also recently circulated a paper for consultation relating to a general Protocol which it is intended would apply to all disputes. What is the effect of a Protocol?Whilst the details of each Protocol, naturally, vary according to circumstances, the general structure is as followsThe claimant is to send a brief letter indicating the nature of the claim, including the remedies sought, as soon as practicable after the issue arises. That is followed by a detailed letter of claim. The proposed defendant is to acknowledge receipt of the above, usually within 14 days. The proposed defendant is to provide a detailed reply to the detailed claim within a further timescale, usually 3 months. There is provision for pre-action disclosure by both parties. The detailed reply by the defendant should indicate, if the claim is denied, the detailed basis of the...

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