During the access to justice inquiry, Lord Woolf believed codes of practice for pre-action conduct were needed for common types of dispute. He believed a system was needed which would enable parties to a dispute to embark on meaningful negotiations as soon as the possibility of litigation was identified. This enables parties to define their claims and make realistic offers to settle. The purposes of protocols are: to focus the attention of litigants on the desirability of resolving disputes without litigation; to enable them to obtain information they reasonably need in order to enter an appropriate settlement; to make an appropriate offer; and if pre-action settlement is not achievable, to lay the ground for expeditious conduct of proceedings. Pre-action protocols currently exist for: personal injury claims; clinical disputes; construction and engineering; defamation; professional negligence; judicial review; disease and illness; housing disrepair; possession claims based on rent arrears; and possession claims based on mortgage arrears.
Practice directions for pre-action conduct
The aim of the practice direction for pre-action conduct is to enable parties to settle the issues between them without the need to start proceedings and to support the court and the parties of proceedings that cannot be avoided. In order to achieve these aims it is necessary for the parties to exchange information about the issue in hand and to consider the use of an alternative dispute resolution.
The court is able to take into account the extent of the parties’ compliance with the pre-action practice direction when giving directions for the management of claims and orders regarding the payment of costs. The parties will have been expected to comply with all rules specified; this includes the courts ability to scrutinise the parties’ actions in achieving compliance. In assessing the compliance of a party the court will observe if the relevant principles and requirements have been adhered to and consider the proportionality of the steps taken compared with the size of the issue. Furthermore, the court will take into account the urgency of the matter and compliance which is reasonable in those circumstances. Non-compliance by a party can lead to the imposition of sanctions by the court.
Pre-action correspondence is the initial communication between the claimant and prospective defendant. This is not the start of proceedings. Once the claimants claim has been discussed with a solicitor and they are satisfied that their client has a valid claim, a letter is sent to the defendant, known as a ‘letter of claim’. It should be noted that if the claim is one governed by pre-action protocol, the letter should contain any information stipulated by the protocol.
The letter can either be addressed to the prospective defendant himself or to the defendant’s solicitor, if it has come to the attention of the claimant’s solicitor that he has one working on his behalf. Where the prospective defendant is insured in respect of the claim, a copy of the letter should be enclosed for their attention.
The claimant’s letter before claim should give concise details about the issue to enable the defendant to understand the claim against him and pursue relevant investigations without requiring further information. The defendant should then give, if necessary, written acknowledgement of the claim and a full written response within a reasonable period. Only information relevant to resolving the issue should be exchanged between the parties.
A time period may vary depending on what the issue is, but the general guide is that the defendant should send a full response within 14 days if the matter is straightforward if the issue is more complex acknowledgement of receipt of the letter of claim should be issued within 14 days. A 30 day period is allowed where a third party or insurer need to be involved but if a matter is particularly complex a longer period might be granted.
It is at this juncture the parties must decide how to proceed. The three most common routes are: settling out of court; starting alternative dispute resolution proceedings; or by starting court proceedings.
It should be noted that there are statutory time limits for starting proceedings. If the claimant starts proceedings for a claim following the expiry of the limitation period, the defendant can use it as a defence to the claim.
Rachel Pellatt, work experience student at Lawdit Solicitors.