Pre-Action Protocol: What happens if you ignore it?

In civil disputes in England and Wales, the Pre-Action Protocols are too often dismissed as a procedural nuisance. They are nothing of the sort. They are a mandatory stage of the litigation process, and treating them lightly is a costly error.

The Protocols form part of the Civil Procedure Rules and apply before proceedings are issued. Their purpose is clear: early exchange of information, encouragement of settlement, and the proportionate conduct of litigation. Courts expect compliance and enforce it rigorously. Those who fail to engage commonly regret it.

The most frequent breach is simply ignoring a letter of claim. It may appear inconsequential, particularly where proceedings do not follow immediately. In reality, it concedes control. Once the protocol timetable expires, the claimant is entitled to issue proceedings on their own terms. You are then responding, not directing.

When the matter reaches court, the consequences become acute. Judges routinely scrutinise pre-action conduct at case management and again when dealing with costs. A party who has ignored the protocol may face a stay, adverse costs orders, loss of interest, or indemnity costs. These sanctions may be imposed even where that party ultimately succeeds.

It is a mistake to assume this exposure is confined to claimants. Defendants who fail to acknowledge or engage with a pre-action letter are equally at risk. Silence is rarely neutral. It is commonly characterised as unreasonable conduct, with serious costs consequences.

There is also a strategic disadvantage. The pre-action stage allows parties to define the issues, test the strength of the opposing case, and in some instances avoid litigation altogether. Proper engagement enables errors to be corrected, disputes narrowed, and positions protected. Ignoring the process achieves none of this.

Compliance does not require capitulation. The rules demand proportionate engagement, not the wholesale disclosure of one’s case. A firm, measured response grounded in fact and law will almost always leave you better placed than doing nothing.

In short, ignoring the Pre-Action Protocols is a false economy. It exposes parties to procedural sanctions, unnecessary expense, and judicial disapproval. Courts expect sensible and timely engagement. Those who fail to provide it are seldom indulged.

If you have received a pre-action letter, or are considering issuing a claim, timely advice is essential. Contact us for a free consultation if you are involved in a legal dispute.