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Generally, main purpose of pre-action protocol is exchanging information between parties with further settlement. In that case where settlement wouldn’t be achieved, pre-action conduct let not define issue to facilitate a more effective court trial.

Simply words, pre-action protocol is the compulsory steps, which include :

  •  exchanging correspondence with purpose to define and handle issue, or using another way of communication
  •  letter before claim,
  •  alternative dispute resolution provider such as mediators, arbitrator, ombudsman or other third independent party who can assist to reach a solution

Why is pre-action protocol is so important? Can you get to the court without sending letter to the opponents and trying to settle issue without trial?

Based on Practice Direction - Pre-Action Conduct and Protocols of Procedure Rules, paragraph 13, court will expect that parties implemented all relevant pre-court actions before starting small claim. As well, court could ask what exactly was done and take into account when managing proceedings and making orders for costs.

Claimant and defendant should keep in mind that court is the last resort and should have sufficient grounds and evidences to start small claim.

Main purpose of pre action protocol

  •  defining position of both parties and disclosure of certain documents 
  •  try to resolve and settle dispute before claim
  •  try to apply for Alternative Dispute Resolution(ADR) scheme
  •  help to reduce cost of settling case
  •  in case of settle wouldn’t achieved, pre-actions help to support further court proceedings

Pre-action requirements

  1. Claimant should give the writing explanation of issue to the other person or company. Generally, it is a complaint letter where reasonable time limit for reply must be specified alongside with fully detailed description of issue.
  2. Claimant should also warn the opposite side about intention to take court action in case of they fail to reply and resolving issue wouldn’t be achieved.

Most of all service providers and companies have a customer complaint code. It provides comprehensive information to the customers how to get in touch with company or how to complaint.

For example, internet provider such as BT has BT Customer Complaints Code, Virgin refer to Code of  Practice of Complaint. Technically, major of public agreements have information about way of communication in case of customer’s complaint or provide details procedure of complaint.

Non-compliance with pre-action protocol

Court may decide that parties didn’t use effective procedure of pre-action protocols such non-disclosure all evidences and unreasonable refuse to use any form of ADR.  

In such case, could may order:

  • to hold proceeding and order parties to comply with pre-action protocol
  • relieved parties from this procedure
  • penalize defendant and claimant or apply other sanctions.

Failure to comply with pre-action protocol may influence on cost that party will be awarded (Paragraph 16 of Pre-action conduct and protocol). If  it is a fault of claimant then he/she could be deprived part of awarded amount. If defendant is liable for failure to pre-action conduct then claimant will be awarded more cost then asked. But interest is no more then 10% above base rate.

All requirements and consequences of failure pre-action protocol is described in Court Procedure Rules for civil cases, such as small claim.

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