Before taking a legal dispute to court, there are certain steps you must follow - these are called pre-action protocols. They help resolve disputes fairly and efficiently by encouraging early communication, evidence gathering, and potential settlement discussions. In this guide, we’ll explore what pre-action protocols are, why they’re important, and what happens if they're not followed.
What is pre action protocol?
A pre-action protocol is a set of rules and procedures that individuals or businesses must follow before filing a legal claim. These protocols vary depending on the type of dispute and aim to:
✅ Encourage early communication – Both parties must exchange information before going to court.
✅ Promote early resolution – This could mean negotiating a settlement or using alternative dispute resolution (ADR).
✅ Reduce unnecessary court cases – If disputes can be resolved without litigation, it saves time and legal costs for everyone involved.
Why are they important?
Pre-action protocols aren’t just red tape - they exist to help both parties settle disputes fairly and efficiently. Pre-action protocols are designed to make the legal process smoother and fairer by ensuring that all parties:
Understand the case against them before legal action begins.
Have a chance to respond or negotiate before court proceedings.
Can resolve disputes without litigation, saving time and legal costs.
Letter of claim explained
All pre-action protocols require that a letter before action be sent. This is a formal notice sent to the other party before legal action begins. It outlines the issue, what needs to be done to resolve it, and the consequences if no action is taken. This is a key step in a pre-action protocol, designed to give both sides a chance to settle the dispute before going to court.
A letter of claim typically includes:
Details of the claim, including key facts and dates.
The legal basis of the claim (e.g. a breach of contract or negligence).
A demand for action, such as payment of a debt or compensation.
A deadline for response (usually 14–30 days, depending on the type of claim).
Consequences of non-compliance, such as court action.
What happens after a pre-action protocol letter?
Once the letter is received, the other party has a set period to respond. They can:
Agree to the claim – They may accept responsibility and offer to pay or settle.
Dispute the claim – They may challenge the claim and provide evidence to defend themselves.
Ask for more information – If they need more details before responding fully.
List of pre-action protocols
There are specific pre-action protocols for different types of civil claims. For example:
Protocol | Date came into effect |
|---|---|
Personal Injury | 6 April 2015 |
Resolution of Clinical Disputes | 6 April 2015 |
Construction and Engineering | 9 November 2016 2nd Edition |
Defamation | 02 October 2000 |
Professional Negligence | 16 July 2000 |
Judicial Review | 6 April 2015 |
Disease and Illness | 8 December 2003 |
Housing Disrepair | 6 April 2015 |
Possession Claims by Social Landlords | 6 April 2015 |
Possession Claims for Mortgage Arrears | 6 April 2015 |
Dilapidation of Commercial Property | 1 January 2012 |
Low Value Personal Injury Road Traffic Accident Claims | 30 April 2010 extended from 31 July 2013 |
Low Value Personal Injury Employers’ and Public Liability Claims | 31 July 2013 |
Some of the key protocols include:
1. Pre-action protocol for debt claims
This applies when businesses seek to recover money from individuals (not other businesses). The protocol requires creditors to send a detailed letter before action, allowing the debtor at least 30 days to respond before court action is taken.
2. Pre-action protocol for personal injury claims
Used when someone is making a compensation claim for injuries caused by negligence (e.g. workplace accidents, road traffic accidents, or medical negligence). It encourages early evidence sharing, medical assessments, and settlement discussions before issuing court proceedings.
3. Pre-action protocol for housing disrepair claims
This protocol applies when a tenant claims against a landlord for failure to carry out necessary repairs. The tenant must notify the landlord in writing and give them time to address the issue before taking legal action.
4. Pre-action protocol for professional negligence
If someone wants to sue a professional (e.g. a solicitor, accountant, or surveyor) for negligence, they must first send a letter of claim and allow time for a response before filing a lawsuit.
5. Pre-action protocol for possession claims
Used in landlord-tenant disputes when a landlord seeks possession of a property due to rent arrears or other issues. It ensures the tenant is given fair warning and the opportunity to resolve the dispute before court proceedings start.
6. Pre-action protocol for construction and engineering disputes
Applies to disputes involving construction contracts or defective building work. It encourages parties to exchange information and consider settlement discussions before going to court.
7. Pre-action protocol for defamation claims
This applies to libel and slander cases. The claimant must set out their complaint in a detailed letter and allow the defendant time to respond before court action is taken.
What if there’s no pre-action protocol to follow?
If there is no specific protocol for a claim, the General Practice Direction on Pre-Action Conduct applies. This means the parties should:
Exchange relevant information and evidence.
Try to resolve the dispute through negotiation or mediation.
Avoid unnecessary delays in taking action.
Send a letter before action outlining the claim and allowing the other party time to respond.
Following these steps ensures fairness and prevents unnecessary court proceedings.
What happens if you don’t follow them?
If your case ends up in court, the judge will review your pre-action conduct - basically, they’ll check whether you followed the proper steps before starting legal proceedings. If you haven’t complied, you could face:
Delays in your case: The court might pause proceedings while you go back and follow the protocol properly.
Higher legal costs: You could be ordered to pay extra costs, even if you win your case.
A weaker case: If you didn’t follow protocol, the court may take a less favourable view of your claim or defence.
Do you have to follow pre-action protocols?
In short, yes - if your dispute goes to court, the judge will expect that both sides have followed the correct pre-action protocol. They won’t penalise small technical errors, especially in urgent cases (like if you’re applying for an injunction), but they will look at whether you've made a real effort to comply.
What orders can a court make for non-compliance?
If a party ignores or fails to follow pre-action protocols, the court can:
Order them to pay the other party’s legal costs.
Limit the amount of evidence they can present in court.
Dismiss their claim or defence entirely.
These penalties highlight the importance of following pre-action protocols properly.
FAQs
What is the purpose of pre-action protocols?
Pre-action protocols aim to encourage early resolution of disputes, reduce court cases, and promote fair legal processes by ensuring both parties share information and attempt to settle before litigation.
Do all legal claims require a pre-action protocol?
Not all claims have a specific pre-action protocol, but the general Practice Direction on Pre-Action Conduct applies to cases without a designated protocol.
Can you ignore a letter of claim?
Ignoring a letter of claim can lead to court proceedings and potential penalties for non-compliance. It’s always best to respond promptly and try to resolve the matter.
Can I settle a dispute without going to court?
Yes, pre-action protocols encourage negotiation, mediation, and alternative dispute resolution (ADR) before court action is taken. Settling early can save time and legal costs.
Final thoughts
Pre-action protocols play a vital role in the UK legal system, ensuring disputes are handled fairly and efficiently. Whether you’re making a claim or defending one, understanding the process can help avoid unnecessary court battles, save costs, and encourage early resolution.
If you receive a letter before action, it’s important to respond promptly and seek legal advice if needed. By following pre-action protocols, you can ensure a smoother, more structured legal process.
Disclaimer: This article only provides general information and does not constitute professional advice. For any specific questions, consult a qualified legal professional.
