Pre-action conduct in civil litigation

by James Pollock and Kirsty Oliver, Simmons & Simmons

This Practice Note provides guidance on the rules governing pre-action conduct for parties considering litigation. It outlines the importance of complying with the Practice Direction on Pre-action Conduct and Protocols (Pre-action PD) and (where appropriate) specific Pre-action Protocols (PAPs). It examines the primary objectives of the protocols, which include encouraging the early exchange of information, narrowing the issues and exploring settlement. It explains the potentially serious consequences of non-compliance, such as adverse costs orders and also discusses the principles for recovering pre-action costs. This Note also considers matters including the final reports from the Civil Justice Council on reforming PAPs, costs and funding; the court's approach to parties who unreasonably fail to engage in alternative dispute resolution (ADR), including the impact of key cases such as Churchill and subsequent CPR developments; and the specific pre-action procedures in the Commercial Court, Technology and Construction Court and the Chancery Division.