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New Pre-Action Protocols

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02/04/2015

As of 6 April 2015 new and amended protocols, which will form part of the Civil Procedure Rules, will come into effect to govern the parties’ pre-action behaviour as follows:

  • The Pre-Action Protocol for Professional Negligence
  • The Pre-Action Protocol for Judicial Review
  • The Pre-Action Protocol for Housing Disrepair Cases
  • The Pre-Action Protocol for Possession Claims by Social Landlords
  • The Pre-Action Protocol for Possession Claims Based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property

All of the protocols place a real emphasis on Alternative Dispute Resolution (ADR) and require the parties to undertake prescribed pre-action steps which are designed to facilitate settlement (failing which costs sanctions may be applied in any subsequent litigation), so that the issue of court proceedings should be a last resort for the resolution of all such disputes.

Some of the new protocols even require that, where pre-action steps have not resulted in settlement, the parties should undertake a ‘stocktake’ exercise so that, at the very least, issues which are put before the court have been narrowed so far as possible. In light of the recent Jackson Reforms and a growing emphasis within civil litigation on proportionality and costs budgeting, it is likely that ‘taking stock’ in this manner is to become increasingly prevalent.

So far as individual pre-action protocols are concerned, there are more wide-ranging obligations than ever before on lenders and social and residential landlords in particular to provide certain information and documentation to borrowers and tenants before issuing or defending possession proceedings or housing disrepair claims.

There is little doubt that greater transparency and cooperation is the way forward, and pre-action protocols have generally met with much success in the past. It is, therefore, to be hoped that these obligations genuinely do facilitate early and amicable settlement to the benefit of all parties, rather than merely increasing upfront, pre-action cost and delaying ultimate resolution via litigation.

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