Before most civil court claims in England and Wales are issued, the law expects both sides to have already tried to sort things out — or at least to have properly explained their positions to each other. This step is governed by pre-action protocols and a general Practice Direction, and getting it wrong can affect a case even if the underlying claim is a strong one.
What pre-action protocols are for
A pre-action protocol sets out what should normally be done, in relation to a particular type of claim, before court proceedings are formally issued. Specific protocols exist for particular categories of dispute, including clinical negligence, personal injury, construction and engineering disputes, defamation, professional negligence, judicial review, disease and illness claims, housing disrepair, and possession claims for both rent and mortgage arrears. Where a specific protocol exists for the type of dispute involved, the parties are expected to follow it.
What happens when no specific protocol applies
Many disputes don’t fall neatly into one of the specific protocols. For these, the general Practice Direction on Pre-Action Conduct sets out a baseline set of expectations: the parties should exchange enough information to understand each other’s position, and should consider whether the dispute could be resolved without going to court at all, including through some form of alternative dispute resolution. In practice, this typically means the person considering a claim sends a clear letter setting out the basis of the claim, a summary of the key facts, what outcome or remedy is being sought, and — for a money claim — how the amount being claimed has been calculated. The other side is then expected to respond within a reasonable period, which can range from around 14 days for straightforward matters up to about three months for more complex ones, addressing which facts are accepted or disputed and whether there’s any counterclaim.
Why this step is not just a formality
The stated aims behind pre-action conduct are to help both sides understand each other’s position well enough to make informed decisions, to support settlement without proceedings wherever realistically possible, to encourage appropriate ADR, and to support efficient case management if the matter does end up in court. Courts take this seriously enough that the process is not merely advisory in practice — a party who essentially ignores it, rather than proportionately engaging with it, exposes themselves to real consequences later, regardless of how the substantive dispute is eventually decided.
What happens if someone doesn’t comply
If a case ultimately goes to court, the court will look at whether the pre-action protocol or Practice Direction was followed when it comes to managing the case and deciding who pays the costs. Possible consequences of non-compliance include being ordered to pay some or all of the other side’s costs, costs being awarded on a stricter “indemnity” basis rather than the standard basis, being ordered to pay interest at a higher rate on any sum awarded, or — in some circumstances — proceedings being paused so that the outstanding pre-action steps can be completed before the case continues. Courts generally focus on whether there has been genuine, substantive non-compliance rather than penalising minor or technical slips, and urgent cases (such as those needing an injunction) are treated differently, since there often isn’t time for the full pre-action process to play out.
Practical takeaways before issuing a claim
- Check whether a specific pre-action protocol applies to your type of dispute before assuming the general Practice Direction is what governs your situation.
- Send a clear letter before claim, setting out the basis of the claim and what you want, and keep a copy.
- Give the other side a genuinely reasonable opportunity to respond before issuing proceedings, rather than treating the step as a box to tick quickly.
- Keep records of any correspondence and any attempt at alternative dispute resolution — this evidence matters later if costs become an issue.
FAQs
Do I always have to send a letter before claim?
In almost all ordinary civil disputes, yes — either under a specific pre-action protocol or the general Practice Direction. Genuinely urgent cases, such as those requiring an emergency injunction, are treated as exceptions where the usual pre-action steps may not be realistic.
What happens if the other side simply ignores my letter before claim?
If they don’t respond within a reasonable period, you are generally entitled to proceed to issue a claim, having given them a fair opportunity to engage. Keep evidence that you sent the letter and gave a reasonable deadline, as this protects your position on costs later.
Can I be penalised for pre-action conduct even if I win my case?
Yes. Courts can adjust costs orders, and in some cases interest awarded, based on pre-action conduct even where the underlying claim succeeds — winning on the substance doesn’t automatically protect a party from cost consequences of poor pre-action conduct.