Pre-Action Protocol

The Civil Procedure Rules Pre-Action Conduct Practice Direction requires parties to: exchange information about the claim, consider ADR, narrow issues, and behave reasonably. Specific protocols apply to different claim types — Personal Injury, Clinical Negligence, Construction, Defamation, Possession Claims, Judicial Review, and others. Failure to comply can result in costs sanctions, claims being struck out, or unfavourable findings on costs orders. Specialist mortgage and possession protocols require lenders to consider forbearance, give the borrower information, and proceed only as a last resort.

In practice, protocols exist so that cases settle without litigation and, where they do not, so that the issues are already narrowed by the time a judge sees them. That gives you a practical tool: if the other side has skipped the steps, you can say so and ask the court to take it into account. The commonest sanction is on costs — a claimant who ignored the protocol may recover less, and a defendant who ignored it may pay more, regardless of who ultimately wins.

Worked example: Halima falls behind on her mortgage after a period of illness. Her lender issues a possession claim without discussing alternatives. The mortgage arrears protocol required it to provide information about the arrears, discuss the cause, consider a reasonable repayment arrangement, respond to her proposals within a set time, and treat court action as a last resort. At the first hearing Halima produces her correspondence, a budget showing she can clear the arrears over the remaining term, and evidence that her proposal was never answered. The judge adjourns the claim on terms, or suspends any possession order on condition she keeps to the payments — outcomes the protocol was designed to make possible.

The pitfalls are worth planning around. A letter before claim should set out the facts, the legal basis, what you want, and a reasonable deadline, and should enclose the key documents — a bare demand does not comply. Protocols also expect you to consider alternative dispute resolution and to say why if you refuse, because unreasonable refusal to mediate is itself sanctionable. Complying with a protocol does not extend a limitation period, so if a deadline is close, issue the claim and comply afterwards. And where no specific protocol applies, the general Practice Direction on pre-action conduct still does.

Pre-action protocols sit within the Civil Procedure Rules, run alongside the FCA arrears rules in MCOB 13 for regulated mortgages, and generally expect an attempt at mediation first. Read our guides to defending repossession and mortgage arrears, and keep every letter you send.