Pre-action: general - overview

As soon as a dispute is imminent, parties need to consider a number of factors. Some of these are general steps that should be considered immediately a dispute is on the horizon and before the specific requirements of the pre-action protocols require consideration.

Before pre-action protocols

There are a number of issues to take into account immediately before exchanging the information required by the pre-action protocols. For example, the claimant may need to consider whether or not it is worth pursuing the defendant at all by checking their financial means. The claimant will also need to establish whether or not the claim is subject to any limitation period (Limitation overview).

Lawyers should also discuss at this stage whether or not entering into some form of ADR would be appropriate.

For more detail see Before pre-action protocols.

Pre-action protocols and additional claims

Generally parties are required to comply with the Pre-action protocols or the Practice Direction – Pre-Action Conduct when a defendant to an additional claim is joined in to the action. The Civil Practice Rules give the court the power to stay an action to allow the parties time to follow pre-action requirements. In considering whether or not to order a stay, the court will take into account factors such as what stay could be accommodated without jeopardising the whole timetable or if a stay to implement the protocol process would achieve anything useful.

For more detail see Pre-action protocols and additional claims.

Non-compliance with pre-action protocols

The court may impose costs sanctions for failure to comply with the relevant pre-action protocol. The court will not be concerned with minor transgressions, but will consider the proportionality of the steps taken and the urgency of the matter. The court can also use sanctions against parties who refuse to take part in ADR, including before an action is started.

For more detail see Non-compliance with pre-action provisions.

Admissions - pre-action

Pre-action admissions are dealt with in CPR 14. However, there are no clear guidelines as to when or how pre-action admissions that do not fall within CPR 14 should be made. Based on general legal principles, however, a party should consider making an admission in writing where possible and as early as possible to reduce costs. However, in practice because of the status of pre-action admissions a reduction in costs may not occur as a claimant may chose to continue to prepare its case until after proceedings are issued and a defence filed. The courts have set out guidelines for dealing the withdrawal of a pre-action admission. For pre-action admissions in personal injury cases, practitioners should refer to the Personal Injury Module.

For more detail see Admissions - pre-action.

Pre-action behaviour in non-protocol cases

For guidance on those cases covered by specific pre-action protocols, see Pre-action protocols.

Those cases that are not covered by a specific pre-action protocol fall within the auspices of the practice direction - Pre-action Conduct. Failure to comply with these practice directions may attract the same costs consequences as failure to comply with any of the pre-action protocols.

For more detail see Pre-action behaviour in non-protocol cases.

European orders for payment

European orders for payment (‘EOPs’) are a simple regime for a claimant to obtain an order for payment without a hearing. They will be granted where there is an uncontested pecuniary claim in a cross-border case. A ‘cross-border’ case is one where at least one of the parties is domiciled in a Member State (excluding Denmark).

The procedure for obtaining an EOP is set out in

Standard forms must be used and they are set out in the Regulation.

For more detail see European orders for payment.