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New Generic Pre-action Protocol

From 1 April 2009 the 49th update to the Civil Procedure Rules will come into force.  One of its most important changes is the introduction of a generic pre-action protocol.  A number of types of case already have pre-action protocols in place, the new general protocol will apply to most other case types.

As with other protocols failure to comply without good reason will lead to a request for an explanation for the non-compliance by the Court and could lead to costs being awarded against the defaulting party, even in the small claims track.  It is therefore clear that an understanding of, and compliance with the new protocol is important.

There are genuine practical advantages to compliance too.  The aim of the protocol is to assist parties in settling disputes at an early stage without embarking on litigation.  Therefore compliance with the protocol could assist parties in settling their dispute more quickly and at a lower cost.

Pre-action Letter

The protocol requires a pre-action letter to be sent by the claimant.  The letter should include:

  • The claimants name and address;
  • The basis of the claim;
  • A clear summary of the facts;
  • The remedy the claimant seeks;
  • An explanation of how any financial remedy sought has been calculated;
  • Provide details of any specific funding arrangement entered into by the Claimant;

The protocol also requires the claimant to:

  • List the main documents on which they rely (and presumably include copies);
  • State when the claimant expects a response;
  • Offer ADR if the claimant thinks it appropriate and invite agreement;
  • Ask for copies of specific documents that the claimant desires to see.

A number of points are worth noting from this list of requirements:

    1. The claimant must show a basis for calculation of any financial demands.  This is something that claimants frequently do imprecisely, if at all, and so it will be necessary to apply more rigour to such calculations;
    2. While the protocol does not require the claimant to provide the documents he is relying on he is required to list them and so the implication appears to be that copies should be provided;
    3. The claimant is encouraged to put forward a proposal for ADR.  Interestingly the protocol list several different methods of ADR, including mediation, early neutral evaluation, arbitration, and plain old negotiation so the current bias in the Courts toward mediation as the only valid form of ADR may start to change;
    4. The claimant is allowed to ask for copies of documents.  However he is required to ‘identify’ them so the protocol is not a licence for ‘fishing expeditions’.

Additionally, where a defendant is believed to be unrepresented the claimant is expected to refer the defendant to the protocol and provide a warning that ignoring the letter could lead to the commencement of legal proceedings.

Defendant’s Response

The defendant is normally expected to respond within 14 days in full.  Where that is not possible they should send an acknowledgment letter within 14 days stating:

  • If an insurer is involved;
  • If the defendant is seeking advice who they are seeking it from;
  • When the defendant, its insurer, or its advisors will provide a full response;

The letter should also request any further information the defendant requires to make its full response.

The full response should begin by accepting the whole or part of claim or denying the claim.  If the defendant is not accepting the whole claim the letter should then state:

  • Why the claim is being denied by reference to the facts which are disputed and clearly identifying any parts which are accepted;
  • State whether any counter-claim is to be made and provide the same information as must be provided by the claimant’s pre-action letter;
  • State whether the defendant believes the claimant to have been to blame for any part of the claim and, if so, state why;
  • Agree to the proposals for ADR or state why they are not agreed and propose an alternative form of ADR or state why no ADR is relevant;
  • List the essential documents on which the defendant intends to rely;
  • Supply any documents requested by the claimant or, alternatively, state why they will not be supplied;
  • Identify and ask for any documents the defendant wishes to view.

Claimants Response

In response to the defendant’s letter the claimant should provide the documents sought or state why they will not be provided and, if the defendant has made a counterclaim, should respond in the form required for the defendant’s letter.

After this process the protocol anticipates that the parties will be in a position to review the relative merits of their respective cases, to eliminate unimportant issues, and consider how to proceed.  The protocol encourages further careful thought before the issue of proceedings.

Debt Proceedings

Where the claim being contemplated is one by a company against an individual for unpaid debts there are further requirements to be followed.  The initial claim letter is required:

  • To provide details of how the outstanding monies can be paid;
  • To state that the defendant can contact the claimant to discuss repayment options and provide details of a suitable contact; and
  • Give the defendant details of organisations that can provide free, independent advice and help.

Conclusions

Many will undoubtedly see this process as an unnecessary and unwieldy bar to swiftly progressing a claim into Court.  However, the Courts are increasingly awash with relatively minor claims that could easily be resolved by sensible negotiation between the parties.  By forcing both sides to declare their case earlier and also creating significant costs consequences for failure to comply with the protocol in all tracks the Courts presumably intend to reduce the quantity of cases being litigated.  The introduction of the protocol makes it even more important for landlords and agents to consider whether their agreements should include clauses offering suitable forms of ADR to reduce their reliance on the protocol and to help expedite disputes.

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