Things you need to know about court procedure before you sue someone

Once you have decided to start a claim, and have got the bulk of your evidence together, you need to check if there is a pre-action protocol for your type of case.

A pre-action protocol describes the procedure the court expects you to follow before you issue your claim. It gives details about how to behave and what to do. There are specific pre-action protocols for many types of case. Where your type of claim is not covered by a specific pre-action protocol you need to follow the Practice Direction on pre-action conduct (see below).

The court will expect you to follow the relevant pre-action protocol if you start proceedings after the date that it came into force.

Essentially, this is a ‘cards on the table’ approach. The aim is to encourage early and full information exchange so each side can:

  • understand each other’s position,
  • make decisions about how to proceed,
  • try to settle without starting court proceedings,
  • consider some form of Alternative Dispute Resolution (for example, civil mediation)
  • support the efficient management of the claim, and
  • reduce the cost of resolving the claim.

Currently there are pre-action protocols for claims about:

  • Debt (where the claimant is a business claiming money from an individual, including a sole trader)
  • Package travel claims
  • Personal injury (where the total claim is likely to be allocated to the fast-track (for example, because it is worth over £25,000) and where another relevant pre-action protocol in relation to personal injury, disease and illness or clinical negligence does not apply)
  • Low value personal injury (employer’s liability and public liability) – this is where the total claim is worth under £25,000 but the personal injury element is worth over £1,000 if the case was started before 6th April 2022
  • Low value personal injury (employer’s liability and public liability) – this is where the total claim is worth under £25,000 but the personal injury element is worth over £1,500 if the case was started after 6th April 2022
  • Low value personal injury in road traffic accidents that occurred before 31st May 2021 – this is where the total value is under £25,000 but the personal injury element is under £1,000
  • Low value personal injury in road traffic accidents that occurred on or after 31st May 2021 where the total value is under £10,000 but the personal injury element is under £5,000
  • Disease and illness
  • Clinical negligence
  • Media and Communications (claims to do with print or broadcast media, social media, websites, or speech, including defamation)
  • Construction and Engineering
  • Professional negligence
  • Judicial review
  • Housing disrepair (whatever the value)
  • Possession claims based on rent arrears
  • Possession claims based on mortgage or home purchase plan arrears in respect of residential property
  • Claims for damages in relation to the physical state of commercial property at termination of a tenancy

You can find them at Civil Procedure Rules – Pre-Action Protocols.

The aim of a pre-action protocol is to improve communication between you and the defendant so you both get enough information to decide how likely it is that the case will succeed, and its value. As a result, the two of you may become more willing to try and reach an agreement about the dispute (also known as settling a dispute or reaching a settlement) without you needing to start a civil claim. If you decide to issue proceedings following your compliance with the relevant pre-action protocol, you should be in a better-informed position.

Small claims are dealt with by the pre-action protocol for each type of claim. For instance, the Package Travel protocol applies to claims “where a claimant claims damages valued at no more than £25,000 in a Package Travel claim.” So if your claim falls within the limit for a small claim and is about package travel then the Package Travel protocol would apply.

The extent to which you have complied with the rules on pre-action conduct will be taken into account by the court in relation to any court proceedings which follow. For example, the court may order to you pay additional costs resulting from your failure to follow the protocol if you lose the case, or if you win your case and are awarded costs by the court, the amount may be reduced on account of your failure to follow the rules (see Failing to follow a pre-action protocol or the rules about pre-action conduct below).

If a pre-action protocol applies to your case

Where a specific pre-action protocol applies to your type of case, have a look at it. It will explain the steps you have to take to provide and exchange information about the claim you are planning to make and give you a pretty clear idea of what is involved.

The first step you have to take is to communicate with the other side providing specific information. You may hear this called a ‘letter of claim’ or a ‘letter before action’ or in some types of case a ‘claim notification form’.

Some pre-action protocols provide a form of template letter with blanks which you have to complete with information relevant to your case. See also Letter of Claim below.

Low value personal injury claims

If you have a personal injury claim (except where it is caused by a road traffic accident that occurred on or after May 31st 2021- see below) where the injury element is worth over £1,500 (or £1000 if the case started before 6th April 2022) and the overall claim is worth under £25,000, then you must start the pre-action protocol in a particular way using an online process called the Claims Portal. You may hear this type of claim referred to as a ‘low value’ personal injury claim.

The Claims Portal is available for use by litigants in person as well as lawyers. Currently there is no charge for using the service.

You must use the Claims Portal to notify the other side of your claim if either of the following pre-action protocols applies to your case:

  • The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents

  • The Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims applies to your case.

The Claims Portal is designed to take you through a process where the defendant or their insurer is bound by court rules to respond promptly to you when you tell them about your claim. They have to provide you with relevant information, investigate your case within three months, and actively consider whether rehabilitation (for example, medical help such as physiotherapy) is appropriate.

You can find information about the process at Introduction to the process.

You also need to understand the costs consequences of using the Claims Portal.

Personal Injury claim caused by a car crash

If you have a personal injury claim caused by a road traffic accident that occurred on or after May 31st 2021 where the injury element is worth under £5,000 and the overall claim is worth under £10,000, then you must start the pre-action protocol using an online process called the Official Injury Claim service. See How to make a small claim about injuries caused by a car accident for more guidance.

Pre-action conduct

If there isn’t a specific pre-action protocol that applies to your case, the court will expect you to follow the general rules in the ‘Practice Direction – Pre-Action Conduct’.

These rules describe how the court will normally expect you and the other party to behave before proceedings start. Essentially this is a ‘cards on the table’ approach. The aim is to encourage early and full information exchange so each side can:

  • understand each other’s position,
  • make decisions about how to proceed,
  • try to settle without starting court proceedings,
  • consider some form of Alternative Dispute Resolution, like mediation,
  • support the efficient management of the claim, and
  • reduce the cost of resolving the claim.

Failing to follow a specific pre-action protocol or the general rules about pre-action conduct

Later, if you do start court proceedings, a court may ask you to explain what you did to comply with the relevant protocol and/or the rules about pre-action conduct before you started court proceedings. If you haven’t complied with them you may have to explain why not and the court can impose a sanction. For example, they might order you to pay legal costs for behaving unreasonably, even where you would not normally have been ordered to pay the other ’s legal costs.

A court can:

  • put the case on hold (called a stay or a stay of proceedings) until you do the things you should have done already,
  • order you to pay part or all of the other party’s costs, or more of the other side’s costs than you would otherwise have had to pay,
  • deprive you of interest or award you interest at a lower rate than you would otherwise have got on any money the defendant ends up having to pay you, or
  • order you to pay interest at a higher rate than would otherwise have been awarded, if you are the defendant and you end up having to pay the claimant money.

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