Pre-Action Protocols

Question 1

What is a pre-action protocol?

Answer 1

A set of prescribed steps which should be followed before a party issues a claim at court.

Question 2

In what areas are there pre-action protocols?

Answer 2

Debt claims (business to consumer);
Personal injury;
Professional negligence claims;
Certain claims in road traffic accidents.

Question 3

What is the “Practice Direction - Pre-action Conduct & Protocols”?

Answer 3

A standard alone practice direction that applies to all civil claims.

Question 4

What should a letter before claim include?

Answer 4

1. The basis on which the claim is made (i.e., why the claimant says the defendant is liable).
2. A clear summary of facts upon which the claim is based;
3. What the claimant wants from the defendant;
4. If financial loss is claimed, an explanation of how the amount has been calculated;

Question 5

What additional matters should a letter for claim include?

Answer 5

1. List the essential documents upon which the claimant intends to rely.
2. Set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this.
3. State the date by which the claimant considers it reasonable for a full response to be provide by the defendant.
4. Identify and ask for copies of any relevant documents not in the claimant’s possession and which the claimant wishes to see.
5. Refer the defendant to PDPACP and in particular, draw attention to paragraph 16 concerning the court’s powers to impose sanctions for failure to comply with the Practice Direction.
6. Inform the defendant that ignoring the letter before claim may lead to the claimant starting proceedings and may therefore increase the defendant’s liability for costs.

Question 6

What should the defendant’s letter of response include?

Answer 6

Should either:
- Accept the claim in whole or part; or
- State that the claim is not accepted.
If not accepted in full, it should:
- Give reasons why the claim is not accepted, identifying which facts and which parts of the claim (if any) are accepted, and which are disputed and basis of the dispute; and
- State whether the defendant intends to make a counterclaim against the claimant, and if so, set out the details of the counterclaim.

Question 7

What additional matters should a defendant’s letter of response include?

Answer 7

1. State whether the defendant alleges that the claimant was wholly or partly to blame for the problem that led to the dispute and, if so summarise the facts relied on;
2. State whether the defendant agrees to the claimant’s proposals for ADR and, if not, state why not and suggest an alternative form of ADR (or state why none is considered appropriate);
3. List the essential documents upon which the defendant intends to rely;
4. Enclose copies of documents requested by the claimant, or explain why they will not be provided; and
5. Identify and ask for copies of any further relevant documents not in the defendant’s possession and which the defendant wishes to see.