The Litigant’s Guide to Pre-Action Protocols

sarah ryan
Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor
Updated on 1st May 2024

Whether you're dealing with a personal injury claim, a landlord-tenant dispute, or a contract disagreement, you'll likely encounter Pre-Action Protocols. These protocols aim to settle disputes before they go to court. But if you're representing yourself, they can be confusing.

guide-to-pre-action-protocols


In this article, we'll explain pre-action protocols in plain language. We'll cover their purpose, scope, and how they work in practice. By the end, you'll know how to navigate them confidently and increase your chances of a positive outcome.

What are Pre-Action Protocols?

Pre-action protocols are rules and guidelines that parties in a potential civil dispute must follow before going to court.

Their purpose is to promote early communication, establish a framework for resolving disputes outside of court, and ensure cases are handled efficiently and fairly.

Parties are expected to try to resolve the dispute through alternative dispute resolution, negotiations, or settlement offers, all within the framework of pre-action protocols, before starting legal proceedings.

To what types of cases do pre-action protocols apply?

Pre-action protocols apply to various types of cases in the UK legal system.

Here are some common types of cases where they typically apply:

  1. Personal injury claims

  2. Professional negligence claims

  3. Construction and engineering disputes

  4. Possession claims

  5. Debt recovery claims

  6. Defamation claims

  7. Disease and illness claims

  8. Housing disrepair claims

  9. Intellectual property claims

There are around 30 specific pre-action protocols that apply to England, Wales, and Scotland, but they all have the same objectives: to try and settle a matter between parties before bringing it before a judge.

What is the point of pre-action protocols?

Pre-action protocols provide a structured process before heading to court. Their goals are to:

  • Encourage early communication

  • Help parties settle before starting formal legal action

  • Identify the main problems of the dispute

  • Consider alternative dispute resolution

  • Aid gathering evidence by outlining how parties should share information (pre-action disclosure)

For litigants, engaging with pre-action protocols can lead to a legal matter being resolved sooner rather than later, reducing the cost, time, and energy spent on the matter.

Pre-action protocols should not be used to gain an unfair advantage over another party and the costs should be reasonable and proportionate.

Do you have to follow pre-action protocols?

If you want to take a claim to court in the UK, you must follow the pre-action protocol as it's a formal requirement set out by the Civil Procedure Rules.

Following the protocol isn't just a box-ticking exercise; it's important for encouraging early communication, clarifying issues, and potentially resolving disputes without court involvement.

By following the protocol, you improve your chances of sorting out the matter effectively and without spending too much money.

Each case has its protocol to follow. Getting legal advice is a good idea if you're unsure which protocol applies or how to follow it.

A litigation solicitor can help you take the right steps and follow the protocol correctly.

What happens if you don't follow pre-action protocols?

If a dispute goes to court and either party hasn't followed the relevant pre-action protocol, it can affect how the court manages the case and decides on costs.

Non-compliance might include:

  • Not giving enough information to meet the objectives.

  • Not meeting set deadlines.

  • Unreasonably refusing to try ADR or ignoring an invitation to do so.

If the court decides a party hasn't complied with the relevant protocol they might pause proceedings or impose sanctions including:

  • Ordering the at-fault party to pay some or all of the party's costs.

  • Ordering the at-fault party to pay costs on a more severe basis.

  • Limiting or changing interest payments on awarded money.

What if the limitation date expires during the pre-action period?

If the limitation date, the legal deadline for bringing a claim, passes while you're following the pre-action protocol, don't panic. You can continue with the pre-action steps instead of rushing into court proceedings.

You can ask the court for more time and they'll look at why there was a delay and decide accordingly.

What happens if there's no relevant pre-action protocol for my case?

If there's no relevant pre-action protocol for your case, it's still expected that parties should exchange letters and information to try and settle the matter outside of court. This is called Practice Direction.

The process is as follows:

  1. The claimant sends a letter of claim to the defendant.

  2. The defendant responds in a reasonable timeframe either accepting or disputing the claim.

  3. Both parties disclose important documents relevant to the issues in the dispute.

The role of settlements and alternative dispute resolution in pre-action protocols

Pre-action protocols encourage parties to consider negotiation or alternative dispute resolution methods to settle their dispute before and during legal proceedings.

Offers made before proceedings are started are called Part 36 offers.

Parties can also engage in various forms of alternative dispute resolution such as:

  • Mediation

  • Arbitration

  • Early neutral evaluation

  • Ombudsman schemes.

What happens if the issue isn't resolved after following the pre-action protocol?

If the dispute continues after following the pre-action protocol, parties should carefully check the documents and evidence to see if they can find other ways to avoid going to court.

They should try to reduce the problems before starting legal proceedings, however if that's not possible then a claimant can start the process.

How can Lawhive help?

If you're making or defending a claim as a litigant in person, it's important to understand the objectives of pre-action protocols and how your engagement with them can impact the outcome of your case.

If you have more questions or need help with your case, our network of expert litigation solicitors is here for you.

They can help you understand the process, advise on the strength of your case, and provide the support you need to resolve your legal matter in the best way for you.

To get started, contact our Legal Assessment Team for a free case evaluation and fixed-fee quote.

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