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Protocol on pre-action conduct

Before you decide to issue a County Court claim ensure that your conduct of the matter has been compliant with the Civil Procedure Rules Pre-Action Conduct and Protocols. There are currently 13 protocols including amongst others, Construction and Engineering Disputes and Professional Negligence.

If there is no relevant Protocol you are required to follow Pre-Action Conduct as set out in the Civil Procedure Rules Practice Direction Pre-Action Conduct and Protocols (the Practice Direction).

Paragraph 3 of the Practice Direction sets out the objectives:-

Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to:

Paragraph 6 of the Practice Direction sets out the steps the court expects you to take prior to the issue of legal proceedings:-

  1. understand each other’s position;
  2. make decisions about how to proceed;
  3. try to settle the issues without proceedings;
  4. consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
  5. support the efficient management of those proceedings; and
  6. reduce the costs of resolving the dispute.

The steps will usually include:

  1. the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;
  2. the defendant responding within a reasonable time – 14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and
  3. the parties disclosing key documents relevant to the issues in dispute.

The Practice Direction introduces Alternative Dispute considerations and invites the parties to take steps to settle the matter without the need to issue legal proceedings. Indeed paragraph 10 of the Practice Direction other than the parties negotiating a settlement between themselves sets out means to alternative dispute resolution. Parties may negotiate to settle a dispute or may use a form of ADR including:

  1. mediation, a third party facilitating a resolution;
  2. arbitration, a third party deciding the dispute;
  3. early neutral evaluation, a third party giving an informed opinion on the dispute; and
  4. Ombudsmen schemes.

In terms of the orders a court can make where there has been non compliance and the sanctions a court can enforce reference is made to paragraph 15 and 16 of the Practice Direction:

15. Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that:

  1. the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction;
  2. the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction;
  3. sanctions are to be applied.

16. The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which may include:

  1. an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties;
  2. an order that the party at fault pay those costs on an indemnity basis;
  3. if the party at fault is a claimant who has been awarded a sum of money, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded;
  4. if the party at fault is a defendant, and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate, (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.

The message the Ministry of Justice is sending is ‘Do not storm into court without first exploring alternative dispute resolution, because if you do storm in, the courts have powers and sanctions that will stall proceedings and in some cases order the party at fault pay the costs of the other party on a grander scale than would usually be allowed.’

Want to find out more?

If you are owed more than £525 and are unsure how to collect the debt because the debtor has raised a dispute, call award winning Credit Management Expert and Legal Executive Carlo Pegna on 01920 481467 for a FREE debt recovery assessment.