Pre-Action Protocol

In English and many other common law legal systems there is a strong prejudice towards settling matters without litigation. To forward this objective those systems have developed civil procedure rules and protocols designed to try to ensure that parties have practicable and genuine settlement discussions before issuing proceedings. One aspect of the rules is that a potential plaintiff is, in general, required to contact the potential defendant before issuing proceedings and provide information regarding the plaintiff’s claim so as to afford the defendant an opportunity to make a reasonable settlement offer, usually by means of a letter-before-action or pre-action letter. Typically that letter needs to be sent a reasonable period (e.g., 10 working days) before issuing proceedings. In other jurisdictions such a warning letter may be unusual since a putative defendant might use it to file a declaratory judgement action in a more friendly court.

In English law the civil procedure rules contain various protocols as to what information is required to be provided in such a pre-action letter. In some instances very specific information is required, but in general the rules provide that:

Before commencing proceedings … parties to have exchanged sufficient information to—

(a) understand each other’s position;

(b) make decisions about how to proceed;

(c) try to settle the issues without proceedings;

(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;

(e) support the efficient management of those proceedings; and

(f) reduce the costs of resolving the dispute.