Pre-action conduct & protocols

DR.02 — Pre-action Conduct & Protocols

The core duty. Before issuing a claim, parties must exchange enough information to understand the issues, try to settle without litigation, and consider ADR. The framework is the Practice Direction on Pre-Action Conduct and Protocols (PDPAC) plus the specific protocols (e.g. Personal Injury, Debt Claims, Professional Negligence, Construction & Engineering, Housing Disrepair). Where a specific protocol applies, follow it; otherwise the PDPAC's general steps apply.

General PDPAC steps: (1) claimant sends a letter before claim (concise summary of facts, what is claimed, the basis); (2) defendant gives a full written response within a reasonable time — the PDPAC does not fix a single number, but as a working guide a response in 14 days suits a straightforward case and up to about 3 months may be reasonable for a complex one (specific protocols, e.g. the Professional Negligence Protocol, set their own express timetables, which override this general guide); (3) parties disclose key documents, try to narrow issues, and consider ADR.

ADR. Parties must consider ADR. Historically they could not be forced into it, but that has changed. Note Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416: the court can lawfully stay proceedings and order parties to engage in ADR, provided it doesn't impair the right to a judicial hearing and is proportionate. This is now reflected in the CPR's overriding objective and case-management powers, which expressly include ordering or encouraging ADR. Unreasonable refusal to mediate may still be penalised in costs (Halsey v Milton Keynes [2004]; PGF II v OMFS [2013] — silence in the face of an ADR offer is itself unreasonable).

Sanctions for non-compliance. The court considers compliance when giving directions and exercising its costs discretion. It can: stay the claim until steps are taken; order the defaulting party to pay costs (even if they win); reduce/disallow interest, or award higher interest against a defaulting defendant. Sanctions are about substance, not minor technical breaches.

Limitation trap (key). Pre-action protocols do not stop the limitation clock. If limitation is close to expiring, issue the claim to protect the position and ask the court to stay proceedings for the protocol steps to be completed.

Common SBAQ traps:

• PDPAC applies only where no specific protocol covers the dispute — don't apply both.
• Compliance is judged on proportionality and substance, not perfect technical adherence.
• The PDPAC sets a "reasonable time" response standard, not a hard 14-day/3-month rule — those numbers are a guide; specific protocols impose their own deadlines.
• Post-Churchill, "you cannot be forced to mediate" is wrong.
• Protocols govern conduct before issue; allocation (small claims / fast / intermediate £25k–£100k / multi-track) is a post-issue matter under the renumbered CPR Part 26 (in force 6 April 2024) — don't conflate the two.

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