Pre-action Conduct and Protocols
Dispute Resolution > Pre-action Conduct and Protocols
A claimant issues proceedings for breach of contract without sending a single letter of claim or attempting any pre-action correspondence. The defendant applies for costs sanctions. This scenario traps countless SQE1 candidates who mistakenly assume that non-compliance with pre-action protocols prevents a claim from being issued—it doesn't, but the costs consequences can be devastating.
What Is Pre-action Conduct in SQE1?
Candidates often lose marks on SQE1 by assuming that failure to follow a pre-action protocol prevents the claim from being issued — it does not, but the court will impose costs sanctions. Pre-action conduct refers to the steps parties are expected to take before issuing court proceedings. The Civil Procedure Rules (CPR) include a general Practice Direction on Pre-action Conduct and Protocols, together with specific pre-action protocols for particular types of claim (such as personal injury, professional negligence, and debt claims). The overarching purpose is to encourage early exchange of information, promote settlement where possible, and ensure that litigation is truly a last resort.
Understanding pre-action conduct is essential for SQE1 because examiners frequently test whether non-compliance triggers automatic bars to proceedings (it doesn't) or merely costs consequences (it does). The exam also tests your knowledge of which protocol applies to which type of claim and what information a letter of claim must contain. Read more about the complete dispute resolution process in our full SQE1 Dispute Resolution guide. Many candidates also struggle to distinguish between the general Practice Direction and specific pre-action protocols—knowing this distinction can be the difference between a correct answer and a trap.
This topic is closely linked to issuing and serving a claim and forms a key part of the Dispute Resolution syllabus for SQE1.
Key Principles for SQE1
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Practice Direction on Pre-action Conduct and Protocols: Applies to all civil claims. Parties must exchange information, send a letter of claim, allow reasonable time for response, and consider settlement and ADR. This is the baseline that applies unless a specific pre-action protocol displaces it.
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Letter of Claim: Must set out a concise summary of the facts, the legal basis of the claim, the remedy sought, and sufficient information for the defendant to investigate and respond. It is not a pleading; it is an invitation to settle.
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Letter of Response: The defendant should respond within a reasonable time (often 14 days for acknowledgment and up to three months for a full response, depending on the protocol). Failure to respond on time is not a bar to issuing proceedings but may attract costs sanctions.
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Specific Pre-action Protocols: Exist for personal injury, clinical negligence, construction and engineering disputes, professional negligence, judicial review, debt claims, housing disrepair and others. Each prescribes tailored steps and timing.
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Proportionality: The steps taken must be proportionate to the size and complexity of the dispute. An over-elaborate pre-action investigation into a £2,000 claim will not impress the court.
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Settlement and ADR: Parties should consider whether negotiation, mediation, or another form of ADR could resolve the dispute without proceedings. The court will consider whether a party has unreasonably refused ADR.
Exam tip
Always remember: failure to comply with pre-action requirements does not prevent a claim from being issued, but the court will take it into account when making costs orders. Watch out for questions that suggest non-compliance automatically bars the claim—this is a classic SQE1 trap. The consequences flow from costs, not from striking out the claim.
How This Appears in SQE1 Questions
SQE1 questions typically present a scenario where one party has failed to comply with pre-action requirements and ask about the consequences. The key trap is assuming that non-compliance automatically prevents a claim from being issued—it does not, but the court may impose costs sanctions or other penalties. Watch for questions testing whether the correct protocol was followed or whether a letter of claim contained all required information. You might also see questions asking what the court can do when a party has breached the Practice Direction—common answers include costs orders, orders extending time limits, or orders staying proceedings to allow proper pre-action steps to be completed. This is a classic SQE1 trap.
Common Mistakes Students Make
- Assuming that failure to follow a pre-action protocol prevents the claim from being issued—it does not, but sanctions may follow.
- Confusing the general Practice Direction with specific pre-action protocols—know which protocol applies to which type of claim.
- Forgetting that settlement and ADR should be considered at the pre-action stage, not just once proceedings have been issued.
- Overlooking the proportionality requirement—the pre-action steps must be proportionate to the value and complexity of the claim.
Quick Summary
- Pre-action conduct includes sending a letter of claim and allowing reasonable time for response.
- The general Practice Direction applies to all civil claims; specific protocols apply to certain claim types.
- Non-compliance does not prevent a claim being issued but may trigger costs sanctions.
- Proportionality is key: pre-action steps must be proportionate to the claim's value and complexity.
- Settlement and ADR should be considered before issuing proceedings.
Want to test this now? Try a few SQE1-style questions below before moving on.
Test Yourself
Test yourself
Quick check questions based on this article.
Question 1
Scenario
A supplier enters into a contract with a retailer for the delivery of electronic goods worth £85,000. The contract specifies delivery within 30 days. The supplier delivers the goods 45 days after the contract date, and the retailer rejects the delivery as late. The supplier's solicitor sends a letter of claim to the retailer, setting out the basis of the claim and the remedy sought. The letter encloses copies of the key contractual documents. The retailer's solicitor receives the letter but does not respond within the time specified in the relevant pre-action protocol. The retailer's solicitor instead writes to the supplier's solicitor three months later, stating that the retailer intends to defend the claim on the basis that the goods were not of satisfactory quality. The supplier's solicitor is considering issuing proceedings. The retailer has substantial assets within the jurisdiction. Both parties have previously discussed mediation informally but no formal proposal has been made. The supplier recently changed its registered office address but has not yet updated Companies House. The supplier's solicitor wants to know what costs consequences may follow from the retailer's failure to comply with the pre-action protocol.
Which of the following best describes the likely costs consequences for the retailer's failure to comply with the pre-action protocol?
Question 2
Scenario
A retailer enters into a written supply agreement with a manufacturer for the delivery of 500 units of electronic goods per month. The agreement specifies that delivery must occur on the first working day of each month. In August 2024, the manufacturer delivers 500 units that are materially defective and cannot be sold. The retailer immediately notifies the manufacturer of the defects in writing. The manufacturer responds by letter, denying that the goods are defective and refusing to replace them or refund the purchase price. The retailer obtains an independent expert report confirming the defects. The retailer's solicitor sends a letter of claim to the manufacturer on 15 September 2024, setting out the nature of the claim, the basis for the claim, and the remedy sought. The letter gives the manufacturer 14 days to respond. The manufacturer does not respond within 14 days. The retailer issues proceedings on 1 October 2024. The manufacturer's solicitor files a defence and applies for the claim to be struck out on the ground that the retailer failed to comply with the relevant pre-action protocol. The retailer's solicitor had previously acted for the manufacturer in an unrelated property dispute.
Is the court likely to strike out the retailer's claim for failure to comply with the pre-action protocol?
Question 3
Scenario
A homeowner engaged a builder to carry out an extension to her property. The builder completed the work, but the homeowner discovered significant defects within two weeks of completion. The homeowner obtained an independent surveyor's report confirming that the work was substandard. The estimated cost of remedial works was £35,000. The homeowner contacted the builder by telephone to complain, but the builder denied any responsibility. The homeowner then instructed a solicitor to pursue a claim. The solicitor advised the homeowner that a pre-action protocol letter should be sent before issuing proceedings. The homeowner was concerned about delay and asked whether it was possible to skip this step and issue proceedings immediately. The solicitor explained that the court would expect the parties to have exchanged correspondence and relevant documents before litigation commenced. The homeowner asked the solicitor to confirm what information the letter should contain. The builder had previously mentioned during the telephone call that he would be willing to attend mediation, but only after the homeowner agreed to pay half the cost of the remedial works. The homeowner rejected this offer. The solicitor prepared a letter of claim in accordance with the relevant pre-action protocol.
Which of the following best describes the consequence if the homeowner issues proceedings without first complying with the relevant pre-action protocol?
Practice with full exam-style questions
Related Topics
- Dispute Resolution for SQE1: Complete Guide
- Issuing and Serving a Claim
- Responding to a Claim
- Settlement and ADR
Practise Pre-action Conduct and Protocols Questions for SQE1
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