The pre-action protocols form part of the Civil Procedure Rules and sets out the specific procedures to follow before the issuing of proceedings. The objective of pre-action protocols is to encourage the early exchange of information and to help parties to avoid costly litigation, and encouraging parties to reach settlement before any litigation commences.  If proceedings are to be issued, the pre-action protocol also sets out the expected behaviour of both parties, so that both sides are properly equipped to plead/defend any claim.

The protocol also supports efficient management of proceedings where legal proceedings cannot be avoided. Courts will expect parties to comply with the pre-action protocol applicable to their claim. The usual rules as to the awarding of costs may be deviated from if non-compliance with protocol occurs, and this is most commonly seen in low-value personal injury claims, where failure to utilise the Portal can sometimes result in disallowance of out-of-Portal costs.

Courts are partisan to avoiding litigation whenever possible; however, where this is unavoidable, parties are expected to participate in litigation according to the set protocol. The only reason why such protocol should be avoided is in the case where there is an urgent case or time sensitive claim. Submitting to pre-action protocol does not affect the time limit imposed on judicial review claims. The time limit commences from the date of the decision in question.

The different types of protocols include, but are not exhaustive of:

• Housing disrepair;
• Personal injury;
• Debt claims;
• Clinical negligence;
• Judicial Review ;
• Construction and engineering disputes

Making a Claim under the Pre-Action Protocol

The process can be dependant upon the Protocol being followed (for instance low-value personal injury claims require the use of a Portal) however, generally conduct consists of issuing a preliminary notice whereby the Claimant should notify the Defendant of their intention to claim; and if possible, include an estimate of its monetary value. The next step is a Letter of Acknowledgment whereby the Defendant is obliged to acknowledge receipt of the letter within 21 days and provide any preliminary disclosure to allow the matter to be investigated. The Letter of Claim should then be submitted once the full facts of the purported claim are known, and the letter should provide a timeline of the circumstances leading to the dispute as well as a summary of the legal argument for damages. Any documents or supporting evidence and experts’ opinions should also be submitted where applicable.

A Letter of Acknowledgment should be sent to the Claimant by the Defendant acknowledging receipt of the Letter of Claim within a period of 21 days. A Letter of Response should then be submitted to respond to the arguments and details of the Letter of Claim. This is generally required to be completed within three months of the Letter of Acknowledgment, though timescales can vary dependant upon the relevant protocol; however, extensions are available to Defendants and can be agreed between parties. The Defendant’s Letter of Response should elucidate whether liability is accepted or denied for the claim. If liability is accepted, then the Defendant’s Letter of Response should include a Letter of Settlement outlining any proposals to conclude matters.

Legal Costs

The costs rules which apply under the pre-action protocol will depend on the type of case involved as well as the value. Cases which fall under the pre-action protocol for personal injury claims will either fall into a fixed costs category or standard costs category.  It is important to note that if a claim has been submitted via the Portal, then fixed costs will apply irrespective of the value of damages recovered.  If a Letter of Claim has been sent however, then standard costs can be recovered in personal injury matters so long as the pleaded damages were in excess of £25,000 (arguments as to reasonable valuation of the claim may arise if the claim settles for significantly less).

Matters outside of personal injury will likely attract standard costs, so long as the Small Claims track would not have applied, in which case costs recovery is limited to disbursements only.  It should be noted that there are currently proposals for fixed costs to be extended to all civil cases up to £100,000 in value, and this could impact upon the entirety of costs recovery under all these Protocols.

A general rule of thumb however, is that if a Letter of Claim has been sent, and the case has a value that would likely be allocated to the Multi Track, then standard costs will apply.

How Can ARC Costs Assist?

ARC Costs are a team of specialist Costs Draftsmen and Costs Lawyers who can assist in all legal costs related disputes, including those which settle under the pre-action protocol.  Our team of legal costs experts hold a vast array of experience in quantifying costs in all inter-partes disputes, and provide negotiation and advocacy services where required.

As independent costs experts, we can act for either Paying or Receiving parties, and therefore we can assist in either recovering legal costs, or contesting any legal bill you or your client receives.

To discuss your costs claim further, please do not hesitate to contact us on 01204 397302 or email one of the team using our email address: info@arccosts.co.uk. Alternatively, you may complete our online enquiry form and we will be in touch to discuss your query further on the same day.

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