The Claims Process – An Overview
Over the next few months we will be producing a series of 16 articles as a step by step guide through the claims process, providing insight into each stage of a claim, from start to finish.
The Civil Procedure Rules govern the way in which civil litigation should be conducted (from before a claim is issued, through to dealing with costs following a Judgment being given and how to appeal a decision). Failure to comply with the Rules can have serious consequences for the offending party.
This series of articles is aimed at providing an overview of the claims process in England and Wales. It does not cover all of the intricacies associated with pursing a specific claim through the Court. Every claim is unique and requires careful consideration to be paid to the facts and issues in dispute. These articles are for informative purposes only and are not a substitute for obtaining professional legal advice.
Part 1: Pre-Action Conduct and Protocols - Resolution over Litigation
In this article we look at what is required before proceedings are issued.
Litigation can have a massive impact on the lives of the parties involved. The financial implications of pursuing or defending a claim are the most obvious, but it is often the non-monetary aspects of litigation that can cause the parties the most distress. Sleepless nights, distraction from work and the stress of court appearances (to name but a few) are all reasons why every effort should be made to resolve a dispute before resorting to formal proceedings.
The court recognises this together with the need to reserve the (already stretched) court time that is available for those cases where the Courts are the only remaining option to determine a dispute. As a result, the court expect parties to comply with the Pre-Action Conduct and Protocols and has the ability to impose sanctions where parties fail to do so.
Pre-Action Conduct and Protocols form part of the Civil Procedure Rules and explain the conduct and set out the steps that parties to a dispute must take before commencing formal proceedings. There are a number of protocols in place for particular types of claims including Construction and Engineering, Professional Negligence, Media and Communications, Debt and various Property claims. In cases where there may be no specific Pre-Action Protocol in force, parties are still expected to comply with certain steps before resorting to formal proceedings.
The objective of Pre-Action Conduct and Protocols is to encourage parties to exchange information and adopt a “cards on the table” approach to the dispute. This allows the parties to understand each other’s position and make informed decisions about how to proceed. The court will expect the parties to have attempted settlement of the issues in dispute, including considering a form of Alternative Dispute Resolution (see our later article for more information on Alternative Dispute Resolution) to assist with settlement.
The above steps aim to reduce the cost of resolving the dispute and to support the efficient management of proceedings should they become necessary.
If a party does not comply with the relevant Pre-Action Conduct and Protocols, the court can impose sanctions, which can include an order for costs being made against the non-compliant party, or, if the claimant is awarded a sum of money, awarding a lower or higher rate of interest in relation to that sum dependent on whether they or the defendant were the non-compliant party.
It is therefore important to ensure compliance with the Pre-Action Conduct and Protocols. However, there are some limited exceptions when the Pre-Action Conduct and Protocols do not need to be followed before issuing a claim, for example if a party is up against a time limit for issuing a claim.
Before issuing legal proceedings we would always recommend seeking professional legal advice to ensure that all Pre-Action Conduct and Protocols have been complied with. A failure to take these steps at an initial stage could have adverse consequences at a later date.
