A Guide To Essential Conduct And Pre-action Protocols Prior To Making A Claim

• Published date: 08 April 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Giambrone & Partners
• Author: Mr Khizar Arif

It is important to understand there are strict rules on how you should act prior to bringing a claim, as failure to observe the correct protocol may incur penalties if the matter does come to court. The basic position is set out in the Practice Direction on Pre-Action Conduct and Protocols. The Protocols, approved by the Master of the Rolls and annexed to the civil procedure rules (CPR), are designed to ensure that all parties are completely clear on a number of things including each other's position, the costs involved and have considered alternative dispute resolution (ADR) to settle the matter.

Khizar Arif, a partner, commented "a Protocol is simply a set of rules and steps that you should follow in a range of legal actions and circumstances. A list of Pre-Action Protocols can be found at the bottom of the Practice Direction. These include Protocols for Debt Claims, Media and Communications Claims and Professional Negligence amongst others. If you need help determining which Protocol would be most relevant to your claim, Giambrone & Partners' litigation and dispute resolution lawyers can help clarify the obligatory steps that you must take." Khizar further remarked "pre-action protocols help to clarify the situation and direct the parties involved to a resolution that does not involve appearing before the court"

First, the concept of proportionality is very important. Proportionality means the steps taken by the parties must be reasonable and proportionate to identify, narrow and resolve the issues; and the costs incurred must not be excessive. Para. 5 provides that any disproportionate costs will not be recoverable as costs of the proceedings at the end of the case.

Second, there are steps that you must follow before commencing court proceedings. These include writing to the defendant setting out the concise details of the claim, including the basis of the claim, a summary of the facts, and what the claimant wants from the defendant. Here, the defendant is also required to follow the protocol by responding to the Letter of Claim in a reasonable time. The reply should confirm whether the defendant accepts or rejects the claim. The reasons for the decision should be forthcoming and should provide details of a counterclaim if one is to be raised. All parties should disclose relevant documents at this stage.

Third, litigation is to be used only as a last resort. The court encourages, and it is often most...