Pre-Action Protocol

PRE-ACTION PROTOCOL

The purpose of the pre-action protocols set out in the Civil Procedure Rules is to enable the parties to try and settle disputes without the need of going to court.

There are a few pre-action protocols covering different areas, such as:

Construction and Engineering Disputes

Professional Negligence;

Personal injury.

Although there is no specific pre-action protocol in most consumer cases (although the construction protocol may be relevant for complex building disputes), consumers are expected to follow certain steps before issuing proceedings.  Failure to follow the protocol could mean a costs order being made against you, even if you win your claim.

The overall principal of the protocol is for the parties to exchange information so that each are aware of the issues being raised, for the parties to try and resolve the matter without issuing proceedings, and that the parties should act in a reasonable and proportionate manner in dealing with each other.

Before proceedings are issued:

1. You (as the Claimant) should set out in writing full details of the claim (see the precedent pre-action letter), the evidence you are relying on and the remedy that you are seeking.  You should also disclose any expert evidence or independent reports that you have supporting your claim.  Your letter should also set out any form of alternative dispute resolution (ADR) that you consider suitable (mediation, adjudication or arbitration);
2. You should give the trader (the Defendant) a reasonable opportunity to respond (usually 14 days);
3. The Defendant should acknowledge your letter within 14 days and respond in full within a further 14 days.  If the matter is complex, the Defendant should let you know within 14 days when they can reasonably expect to provide you with a response.  The Defendant in its response should accept or reject the claim.  Where the claim is rejected in part or full the Defendant should give reasons, state whether it is to make a counter-claim, agree, refuse or offer an alternative ADR and ask for any documents that they may require.
4. You should then provide any documents requested by the Defendant and if a counter-claim has been made, submit your reply.

It is important that all of the above steps are followed before proceedings are issued.