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Pre-action behaviour in
non-protocol cases
Lexis PSL Dispute Resolution
Practice Note
®
Pre-action behaviour in non-protocol cases
—Practice Direction Pre-Action Conduct and Protocols
This Practice Note explains when the Practice Direction Pre-Action Conduct and
Protocols (the ‘Practice Direction’) (in force as of 6 April 2015, in place of the previously named
Practice Direction- Pre-Action Conduct) applies and sets out its principles and purpose. It also
deals with the contents of a claimant’s letter before claim and the defendant’s response to it.
It also briefly addresses issues of ADR, limitation, experts and pre-action behaviour generally
and in the Commercial Court.
Links in red are available to LexisPSL Dispute Resolution subscribers. For a free trial, see lexisnexis.co.uk/DRPSLTrial.
Note: there are no transitional provisions. All links in this Practice Note are to the Practice Direction in force as of 6 April 2015. Should
you still require access to the Practice Direction in force prior to 6 April 2015 and its procedure, please see our Practice Note: Pre-action
behaviour in non-protocol cases (pre 6 April 2015).
When does the Practice Direction—Pre-Action
Conduct and Protocols apply?
There are currently a number of protocols that deal with
specific types of claims. For more detail, see: Pre-Action
Protocols—list of the protocols.
Note: para 18 of the Practice Direction Pre-Action Conduct
and Protocols lists the current claim specific protocols,
however, there is an error in this listing as the protocol for
professional negligence claims was also revised as of 6 April
2015 and this is the most up-to-date version in force (not
that of 16 July 2000).
If a claim does not fall within any of the specific protocols, you
will need to follow the principles set out in the Practice Direction
Pre-Action Conduct and Protocols (Practice Direction) before
proceedings are issued. The Practice Direction sets out the
conduct usually expected of parties prior to the issue of
proceedings. Although the Practice Direction mainly deals with
cases which are not covered by one of the specific protocols, it
also contains provisions that apply in all cases.
Objectives (para 3)
Before commencing proceedings, the court will expect the
parties to have exchanged sufficient information to:
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•
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understand each other’s position
make decisions about how to proceed
try to settle the issues without proceedings
consider a form of ADR to assist with settlement
support the efficient management of those proceedings, and
reduce the costs of resolving the dispute
Parties are not to use the Practice Direction or any of
the protocols as a tactical device to secure an unfair advantage
over another party or to generate unnecessary costs. If
disproportionate costs are incurred they may not be recoverable
(paras 4-5).
Exchanging information
Claimant’s letter before claim (para 6)
The claimant must write to the defendant with precise details of
the claim. The letter should include:
Pre-action behaviour in
non-protocol cases
• the basis on which the claim is made
• a summary of the facts
• what the claimant wants from the defendant, and if money,
how the amount is calculated
Documents (para 6(c))
Whilst the Practice Direction does not specifically require it,
the claimant may also wish to set out what type of ADR the
claimant considers to be most suitable and invite the defendant
to agree to it. See the topic ADR, in particular Types of ADR—
Overview which sets out the different types of ADR.
Debt claims - Claimant is a business and defendant is an
individual
The judgment in Bailey emphasises the importance of pre-action
letters of claim and of ensuring that they accurately reflect the
claim or, if they do not, that this is subsequently acknowledged
and explained. In this case, the claimants’ ultimate claim varied
considerably from the pre-action letter of claim. The fact that
the claimants’ solicitor did not suggest that the letter erroneously
failed to set out the claimants’ case in accordance with their
instructions went some considerable way to destroying the
claimants’ credibility as witnesses in the trial. His Honour Judge
Pelling QC had this to say:
‘The significance of a letter before action is that it forms the basis
or should form the basis for an attempt to resolve differences
using the Pre-Action Protocols. It is meant to set out accurately
and comprehensively the case being advanced so as to enable
the proposed defendant to respond in detail to what is being
alleged as a pre-cursor to an attempt to resolve the dispute
either by negotiation or by alternative dispute resolution. Thus,
whilst such a letter is not supported by a statement of truth,
it is nonetheless a document which all concerned can expect
to fully and accurately set out the case of the party on whose
behalf it is sent. Where such letters are written by solicitors and
it is suggested that there is a material inconsistency a court can
legitimately expect a solicitor who is satisfied that a mistake
has been made to say so either in correspondence or a witness
statement. The letter in this case was written by a solicitor. It has
not been suggested by the solicitor concerned that the letter
erroneously failed to set out the claimants’ case in accordance
with the claimants’ instructions.’ (paragraph 18)
Defendant’s response (para 6)
The defendant must respond to this letter within a ‘reasonable
time’ - 14 days in a very straight forward case and no more than 3
months in a very complex one. The reply should state:
• if the claim is accepted
• if the claim is not accepted, the reasons why and an
explanation of which parts are disputed
• whether the defendant is making a counterclaim, with details of
the counterclaim if being made
Claimant’s reply
The Practice Direction does not specify what should be
included in a reply (if any) but the claimant would be advised to
respond in compliance with the spirit of the Practice Direction,
including providing documents requested by the defendant
where appropriate.
When sending the letter before claim or response, the parties
must disclose key documents which are relevant to the issues in
the dispute.
The practice direction that was in force prior to 6 April 2015
(Practice Direction- Pre-Action Conduct) set out in Annex B
the information that was to be provided where the claimant is
a business pursuing a debt claim against a defendant who is
an individual. However these provisions have been removed
from the revised Practice Direction Pre-Action Conduct and
Protocols in force as of 6 April 2015, and, whilst it had been
anticipated that a special debt claims protocol would be issued,
this has not happened to date. Therefore, if you are dealing with
a debt claim you will need to follow the general principles set out
in the Practice Direction Pre-Action Conduct and Protocols as
confirmed in paragraph 2.
Settlement and ADR (paras 8–10)
The Practice Direction states that parties should consider
whether negotiation or ADR might enable them to settle their
dispute without commencing proceedings and reminds parties
that Part 36 offers can be made before proceedings are issued.
Mediation, arbitration, early neutral evaluation and Ombudsmen
schemes are suggested as methods of resolving the dispute.
For more information see Practice Notes:
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Part 36 offers—overview
Advantages and disadvantages of mediation
Early neutral evaluation
Understanding arbitration under the Arbitration Act 1996—
overview
If proceedings are issued, the court may require evidence
that ADR was considered. A party’s silence in response to an
invitation to participate or a refusal to participate in ADR may
be considered to be unreasonable and may result in an adverse
costs order.
For more information see Practice Notes:
Non-compliance with pre-action protocols and ADR and the
CPR: court’s approach pre-action.
Experts (para 7)
The Practice Direction reminds parties that court permission will
be required before expert evidence can be relied on so parties
need to bear this in mind if they are contemplating instructing
an expert before proceedings are issued. If expert evidence is
necessary, parties should consider instructing a single expert,
particularly in low value claims.
Pre-action behaviour in
non-protocol cases
Limitation (para 17)
The limitation period is not suspended while parties comply
with a pre-action protocol or the Practice Direction. Where a
party has to start proceedings before complying with a protocol
or the Practice Direction because of the imminent expiry of a
limitation period, the parties should apply to the court to stay the
proceedings while the parties take steps to comply.
Non-compliance (para 13)
If proceedings are issued, the court will expect parties to have
complied with the Practice Direction and will take into account
any non-compliance when giving directions for the management
of proceedings and when making orders for costs.
For more information see Practice Notes:
Non-compliance with pre-action protocols.
In relation to pre-action behaviour, the following should be noted
from the Commercial Court Guide:
• the letter of claim should be concise and do no more than
explain the proposed claim sufficiently for the potential
defendant to understand and investigate the allegations being
made and to identify the key dates involved
• only essential documentation need be provided with the letter
of claim
• the period specified for a response should be no more than a
month without good reason
• the potential defendant need only provide a concise response
to the letter of claim and only essential documents need be
supplied
• it should be possible to respond sufficiently within 21 days
• where it is necessary to start proceedings quickly, for example,
in cases of ‘forum shopping’, this may be done without
following pre-action procedures
Stocktake (para 12)
If the parties are not able to resolve the dispute after having
followed a protocol or the Practice Direction, they should review
their respective positions. They should consider the papers and
evidence to see if proceedings can be avoided and at least seek
to narrow the issues in dispute before proceedings are issued.
Pre-action behaviour in the Commercial Court
Precedents
For a precedent letter before claim (seeking recovery of a
debt), acknowledgement and reply see:
• Letter before claim seeking recovery of a debt
• Defendant’s acknowledgment of letter before claim
• Defendant’s full response to claimant’s letter before claim
Where relevant, the pre-action protocols apply to actions in
the Commercial Court. Where there is no relevant protocol, the
Practice Direction applies.
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are trademarks of Reed Elsevier Properties Inc. © LexisNexis 2015 0515-092. The information in this document is current as of May 2015 and is subject to change without notice.