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.

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

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.