Practice Direction on pre-action conduct and protocols: what you need to know

The Practice Direction on pre-action conduct was replaced, with effect from 6 April 2015, with a new Practice Direction on pre-action conduct and protocols (PDPACP). The new Practice Direction (PD) contains many provisions that apply in all cases, whether or not a specific pre-action protocol (PAP) applies.

The changes are unlikely to have a significant impact in practice. The objectives of the PD remain, broadly, to encourage parties to exchange information, consider alternative dispute resolution (ADR) and attempt to resolve issues in dispute without starting proceedings (paragraph 3). A potential claimant should still send a letter setting out details of the claim to the potential defendant who should reply within a reasonable time (not exceeding three months) (paragraph 6).

There appears to be greater emphasis on ensuring pre-action costs remain proportionate. Parties are required to take "only reasonable and proportionate steps" to identify, narrow and resolve the legal, factual or expert issues (paragraph 4). A party will be unable to recover any disproportionate costs incurred in complying with any PAP or the PD (paragraph 5).

Paragraph 11 of the PD states that a party's silence in response to an invitation to participate (as well as a refusal to participate in ADR) might be considered unreasonable by the court and could lead to costs sanctions being imposed. This point appears to reflect the decision in PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 (see Legal update, Court of Appeal extends Halsey principles to cover failure to engage with mediation at all).

Parties are now required to review their respective positions if the dispute has not been resolved after they have followed a PAP or the PD (paragraph 12). In all cases, parties are now required to consider the papers and evidence to see if proceedings can be avoided and, at least, seek to narrow the issues in dispute before a claim is issued.

If a party fails to comply with a PAP or the PD, the court may make an order relieving the parties of the obligation to comply further with the PAP or PD, or stay the proceedings or impose sanctions. In this regard, it is said that the court will still consider whether the parties have complied in substance with the PD or any PAP; the court is unlikely to be concerned with minor or technical infringements, especially when the matter is urgent.

We have updated Practice note, Pre-action protocols: an overview to take account of the changes.