Pre-action protocols requiring a letter of claim are contained within the Civil Procedure Rules and set out the steps the court expect parties to take before commencing proceedings for a particular type of claim. The protocols do not have the status of court rules but should be followed whenever litigation is contemplated. The pre-action protocol letter of claim requirements do not effect any limitation period and a claim must always issued with the court within the time limits set.

Their purpose of pre-action protocols is to encourage the parties to settle disputes themselves by ensuring that they both have all the information required to consider a settlement and to encourage the use of Alternative Dispute Resolution (ADR) methods such as mediation and arbitration.

Failure to comply with a Pre-action Protocol will always be taken into account in any court proceedings which are issued.

The court may decide that there has been a failure of compliance when a party has—

(a) not provided sufficient information to enable the to be met;

(b) not acted within a time limit set out in a relevant protocol, or within a reasonable period; or

(c) unreasonably refused to use a form of ADR or failed to respond at all to an invitation to do so.

The defaulting party may be ordered to pay additional costs resulting from his failure. If he is awarded costs by the court, the amount may be reduced on account of his failure.

The requirement for a delay before issuing a claim is intended to allow a defendant to investigate, consider and respond to the claim before the cost and involvement of the court becomes necessary. Offers of settlement must be put and considered and if not accepted both parties position will be clarified and can be dealt with by the court if necessary as quickly and simply as possible

There are set protocols for 12 different types of claim. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in bearing in mind that compliance should be proportionate.

The steps will usually include—

• 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

• the defendant responding within a reasonable time – 14 days in a straightforward 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

• the parties disclosing key documents relevant to the issues in dispute.

There are some common elements throughout each of the protocols and pre-action conduct guidance. A potential defendant should respond and details relating to the exchange of information and documents by the parties.

Anyone considering litigation should always ensure that they collect together all relevant information, documentation and reports and keep them safe until they need to be produced (‘disclosure’).

Current pre-action protocols include:

• personal injury
• resolution of clinical disputes
• construction and engineering
• defamation
• professional negligence
• judicial review
• disease and illness
• housing disrepair
• possession claims by social landlords
• possession claims for mortgage arrears
• dilapidation of commercial property
• low value personal injury road traffic accident claims
• low value personal injury (employers’ liability and public liability) claims.