The Importance of Pre-Action Conduct
Before starting a formal court case, the courts in England and Wales expect the parties to have tried to resolve their dispute. This is known as “pre-action conduct”. The rules for this are set out in the Practice Direction on Pre-Action Conduct and Protocols.
Key Steps:
- Letter of Claim: The claimant should send a “Letter of Claim” to the defendant. This letter should be a detailed account of the claim, including the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and how the amount has been calculated.
- Defendant”s Response: The defendant should provide a full response within a reasonable time. For most commercial disputes, this is 14 days in a straightforward case and up to 3 months in a very complex one. The response should state whether the claim is accepted and, if not, the reasons why, including any counterclaim the defendant wishes to make.
- Disclosure of Documents: The parties are encouraged to disclose key documents to each other to help clarify and narrow the issues in dispute.
- Settlement and Alternative Dispute Resolution (ADR): The parties must consider whether the dispute can be settled without going to court. They should also consider all forms of ADR, including mediation, arbitration, and early neutral evaluation. The court can impose costs sanctions on a party who unreasonably refuses to consider ADR.
Specific Pre-Action Protocols
For certain types of disputes, there are specific, more detailed pre-action protocols to follow. These include protocols for:
- Professional Negligence
- Construction and Engineering Disputes
- Defamation
- And several others. You can find a full list on the Civil Procedure Rules website.
Court Forms and Fees
While no specific court forms are required at the pre-action stage, you can find all official court forms on the HM Courts & Tribunals Service form finder. Court fees will be payable when you start a claim. You can find information about court fees on the GOV.UK website.
Consequences of Non-Compliance
If a party fails to comply with the pre-action protocol without good reason, the court can order them to pay costs, or can award interest at a higher or lower rate than would otherwise be the case.