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Pre-action protocols - overviewPre-action protocols

There are pre-action protocols relating to specific types of disputes. You should follow the one that most closely relates to the subject matter of the dispute. If there is no protocol for the type of dispute you are dealing with you should follow the Protocols Practice Direction in the Civil Procedure Rules (CPR).

You must keep a record of all documents exchanged at the pre-action stage as these have to be disclosed in the normal way. You may charge the other side for the photocopying costs.

A limitation period will not stop to allow disputing parties to comply with a protocol. If the limitation period is about to expire, a protective claim form should be issued and either party should then apply to stay the action in order to allow time for compliance with the relevant pre-action protocol or practice direction - pre-action conduct.

For more detail see Pre-action protocols.

Non-compliance with pre-action provisions

The court may impose costs sanctions for failure to comply with the relevant pre-action protocol or practice direction - pre-action conduct. Whilst, minor departures are unlikely to result in adverse costs orders, costs sanctions may be imposed where failure to follow a protocol or the protocol practice direction has resulted in:

  • an action being started where it need not have been, or

  • costs being incurred that could have been avoided

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

    Pre-action protocols and additional claims

    In general, 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. In deciding the extent to which CPR Part 20 applies, parties should follow the rules on pre-action behaviour. The court will weigh up the need to comply with the existing timetable against compliance with the pre-action protocol in relation to the additional defendant. Clearly the additional defendant will want to receive as much information as possible about the claim they are being asked to defend.

    The court has the general power to stay an action under CPR 3.1(2)(f) and may choose to do so to allow time for the existing party and the new party to follow (at least in part) a protocol or the practice direction - pre-action conduct. The Technology and Construction Court Guide at paragraph 2.6.1 recognises this power in the context of additional claims.

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

    Construction and engineering disputes

    If working on a construction or engineering dispute it is essential to ensure that you have complied with the requirements of the relevant pre action protocol as well as aspects of the Practice Direction to the pre-action protocols and the TCC Court Guide. These together cover a number of issues such as proportionality and costs. They also sets out the information you need to ensure is provided in Letters of Claim and responses or replies as well as providing the objectives of the required meeting between the parties. It is important to be aware that there are sanctions for non compliance with the protocol such as a stay of proceedings and costs sanctions.

    For more detail see:

  • Pre Action Protocol for Construction and Engineering Disputes

  • Pre action protocol for construction and engineering disputes: letters, reply and meetings

  • Pre action protocol for construction and engineering disputes: effects of non-compliance

  • The future for the Construction Pre Action Protocol

  • Dilapidations

    If working on a dilapidations claim it is essential to ensure that you comply with the requirements of the Dilapidations Protocol. New changes were brought in in 2012 and so an understanding of the way in which the requirements under the protocol have changed will be required. The protocol sets out the timetable you will need to follow and there are sanctions for non-compliance.

    For more detail see:

  • Dilapidations protocol - background, aims and key changes

  • Dilapidations protocol - effects of non-compliance

  • Dilapidations protocol - timetable

  • Housing disrepair

    If dealing with a housing repair claim you will need to ensure that the follow the provisions in the housing repair pre-action protocol. This sets out the correspondence in which information should be provided and the timetable for its provision. It is also helpful to know the aims and the scope of the protocol as this will help you to understand the requirements in the correspondence you need to provide or respond to.

    For more detail see:

  • Pre-action protocol: housing disrepair - aims and scope

  • Pre-action protocol: housing disrepair - timetable

  • Rent arrears

    If dealing with a rent arrears claim you will need to ensure that the follow the provisions in the rent arrears pre-action protocol. This sets out requirements and considerations into a number of issues which arise prior to commencing proceedings in such cases eg the landlords responsibilities, service of notices and when proceedings should not be commenced.

    For more detail see: Pre-action protocol - possession claims based on rent arrears.

    Possession based on mortgage or home purchase plan arrears in respect of residential property

    If dealing with a possession claim involving arrears for a mortgage or home purchase plan in respect of residential property you will need to ensure that you comply with the provisions in the possession based on mortgage or home purchase plan arrears in respect of residential property pre-action protocol. This sets out requirements and considerations into a number of issues which arise prior to commencing proceedings in such cases eg what action to take pre-action, when proceedings should not be commenced and postponing a claim.

    For more detail see: Pre-action protocol - possession based on mortgage or home purchase plan arrears in respect of residential property.

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