What Are Pre-Action Protocols & Who Do They Apply To?
Pre-action protocols play an essential role in how parties approach legal claims. By following the relevant steps, you can ensure you have the best chance of receiving a resolution for your case. In this article, we’ll cover what pre-action protocols are, and who they apply to depending on the case.
What is a pre-action protocol?
A pre-action protocol is a defined legal guide for how solicitors, claimants (the person pursuing a legal claim) and defendants (the party the claim is being made against) should behave during the process of the case.
For example, the pre-action protocol for debt claims was instituted in October 2017 as a measure to regulate and codify the process for businesses to reclaim debts from individuals - like sole traders.
With this, businesses have to follow certain actions before they can bring legal action against debtors, and provide opportunities for a solution to be found outside the courtroom.
Read our article on How to Collect Debt From a Sole Trader to learn more about the specific pre-action protocol for debt collection.
How many pre-action protocols are there?
According to the Ministry of Justice, there are 14 specific pre-action protocol categories. These include guidelines for settling possession claims by landlords and mortgage brokers, claims for defamation, debt collection claims and many more.
In cases where there are no specific pre-action protocols for the type of case they wish to raise, claimants are advised to follow the ‘practice direction - pre-action conduct and protocols’.
This functions in the same way as a pre-action protocol as a guide to proper conduct and processes, with an outline of specific steps that need to be followed before issuing legal proceedings through the courts.
Who do pre-action protocols apply to?
Depending on the type of claim you’re looking to file, there may be a pre-action protocol that applies to your case.
In these situations, the pre-action protocol would apply to everyone involved in the case, including the solicitor acting on behalf of either party, the claimant, and the defendant.
Certain pre-action protocols will set out who is to be involved in each case. For example, the pre-action protocol for debt collection applies to businesses who are looking to reclaim debt from individuals, including sole traders.
This is important as business to business debt collection follows a different process, with slightly different steps.
What is the purpose of pre-action protocols?
Pre-action protocols have an important role when it comes to establishing and resolving a legal claim.
Ensure cases are handled in a timely, cost-efficient manner
Following a pre-action protocol offers an opportunity for the case to be resolved outside of court. This is often a quicker and more cost-effective solution, which can be beneficial for both sides.
Provide detailed information to both parties
Pre-action protocols ensure both parties have equal access to the relevant information, including:
- The details of the claim, including date, situation and evidence.
- Each party’s financial circumstances, if relevant.
- The claimant’s demand.
- The defendant’s response.
- Sharing this information early can help both sides come to a resolution before it needs to go to court.
Encourage a resolution outside the courts
As we’ve mentioned above, following the relevant pre-action protocol encourages you, as the claimant, and the defendant to come to a resolution before the case needs to go to court.
This is usually called an ADR, or alternative dispute resolution. At this stage, you can make use of neutral third-party mediators to help you both reach a fair and equitable decision.
Streamline the litigation process in court
If attendance at court is unavoidable, a pre-action protocol can help to streamline the process because all the relevant data has been collected beforehand. This makes it easier for the judge to reach a decision.
Are there consequences for not following the pre-action protocol?
As we mentioned above, pre-action protocols are designed to offer opportunities to resolve the claim before court action is required. When these are not followed, there can be consequences for either party if/when the case is put in front of a judge.
These are called sanctions, and can be applied to whomever is at fault for not complying with the pre-action protocol. These sanctions may include the following:
- The party at fault is ordered to pay some, or all, of the costs of the court case - including those of the other party.
- The party at fault is required to pay the costs mentioned above on an indemnity basis.
- If the claimant (the creditor in debt collection for example) is at fault, and has been awarded a monetary sum, then they may be subject to an order depriving them of interest on that money for a set period, or receive a lower interest rate than is standard.
- If the defendant (for example, the debtor in debt collection) is at fault, and the claimant/creditor has been awarded a sum of money, the defendant may be charged a higher than standard rate of interest for a set amount of time.
Note: an indemnity basis means that the party at fault is ordered to pay a higher percentage of the costs than is standard because of poor legal conduct.
Looking to collect a debt from a sole trader? Open an account with Thomas Higgins
Open an account with us today or login to create a case and work towards recouping the money your business is owed.
Our website and app lets you view correspondence, issue instructions and take the next steps in your debt collection process. This offers you convenient and real-time access to your claim, ensuring you’ll always know the status of your case.
We work hard to ensure you receive all the money owed to you. Unlike other debt collection agencies, we don’t charge commission or take a percentage of your claim.
Plus, you’ll have free instant online access to your claim at all times - putting you in charge of your case.
