Pre-Action Procedure

In order to further facilitate the settlement of cases, the Court have introduced pre-action protocols in order to shape the conduct of parties before issuing proceedings. There are different Pre-Action Protocols in relation to different kinds of claims. These oblige parties to take certain steps prior to commencing an action. If there is no relevant protocol, there the parties must rely on the Practice Direction on Pre-Action Conduct and Protocols (PDPAC).

The introduction to PDPAC states:  ‘Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims. They are approved by the Master of the Rolls and are annexed to the Civil Procedure Rules (CPR)’

There are elements of the PDPAC and the protocols that are common to all. Parties should exchange sufficient information to understand each others’ positions properly and to make informed decisions as to how to proceed. Parties are require to set out the legal basis of their claim so that the other party can properly consider the merits. The purpose is that if a case is particularly strong, the defendant party  may well be willing to settle the case without proceedings being issued.

The protocols require the early disclosure of the key material in each case. They protocols do not compel the disclosure of any particular material, but do encourage the parties to share the documents which they say underlie their case. Early disclosure of the substance of the claim and supporting evidence, particularly relevant documents, will assist the parties in making an informed decision on the merits of the case at a preliminary stage.

Failure to follow the Practice Direction and the substance of approved protocol can lead to sanctions later on.

Paragraph 3 of PDPAC states: before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—

(a) understand each other’s position;

(b) make decisions about how to proceed;

(c) try to settle the issues without proceedings;

(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;

(e) support the efficient management of those proceedings; and

(f) reduce the costs of resolving the dispute.

PDPAC also encourages parties to seek mediation or arbitration. Paragraph 8 of PDPAC states: ‘litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings. 9 – Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. Part 36 offers may be made before proceedings are issued’.

Once the relevant pre-action protocol has been followed, PDPAC encourages a period of ‘stock take’. It says: ‘Where a dispute has not been resolved after the parties have followed a pre-action protocol or this Practice Direction, they should review their respective positions. They should consider the papers and the evidence to see if proceedings can be avoided and at least seek to narrow the issues in dispute before the claimant issues proceedings’.

The all-important consequences of failing to follow the relevant pre-action protocols are set out at paragraphs 14 – 16. When drafting your attendances notes, you should consider whether your client has been advised on these consequences, particularly where the party is refusing to engage in the pre-action protocol.

14. The court may decide that there has been a failure of compliance when a party has—

(a) not provided sufficient information to enable the objectives in paragraph 3 to be met;

(b) not acted within a time limit set out in a relevant protocol, or within a reasonable period; or

(c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.

15. Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that

(a) the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction;

(b) the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction;

(c) sanctions are to be applied.

16. The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which may include—

(a) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties;

(b) an order that the party at fault pay those costs on an indemnity basis;

(c) if the party at fault is a claimant who has been awarded a sum of money, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded;

(d) if the party at fault is a defendant, and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate, (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.

You act for Lindy Hop Juke boxes Limited. They are being sued by a client who claims that one of their juke boxes was poorly wired and gave them an electric shock. They have minor burns to their hands and have suffered psychological damage as a result. The shock occurred on the 1st of June 2019. Today’s date is the 3rd of August 2021. Which of the following is correct:

  1. The case is statute barred.
  2. The case could be statute barred.
  3. The case is not statute barred.
  4. There is insufficient information to determine this issue.

(c) is the correct answer. The case is being brought within 3 years of the date on which the cause of action accrued. Therefore, it is not barred by the limitation period under section 11 of the Limitation Act 1980.