When the Civil Procedure Rules came into force on 26th April 1999 one of their objects was to encourage the parties to communicate and co-operate more comprehensively with each other in advance of any claim being issued in the Courts, and thereby save legal costs. One of the ways to facilitate this was the introduction of a general protocol of pre-action conduct that parties were required to follow before a potential Claimant could issue Court proceedings. If he chose to issue without complying with the protocol, he would face penalties as a result, including, at worst, not recovering all or a proportion of his costs of the proceedings. At the same time the specific pre-action protocols came into force in relation to personal injury or clinical (medical) disputes.

Since then further pre-action protocols have been created in relation to construction and engineering disputes, defamation, professional negligence, judicial review, disease and illness, housing disrepair, possession claims based on rent arrears and, most recently of all, possession claims based on mortgage arrears that come into 19th November 2008 largely as a consequence of the collapse of the housing market.

These specific pre-action protocols apply to the specific types of disputes to which they relate, in place of the general one.

With effect from 6th April 2009 the general pre-action protocol has been re-written and, whereas, in the past the Court could consider the parties’ pre-action conduct and compliance with the general pre-action protocol, the rules have been changed so that now the Court must consider such conduct.

There have also been two further key changes to the protocol. The first key change relates to how parties should address Alternative Dispute Resolution (“ADR”), which comprise any method in which a dispute might be resolved except Court proceedings. Under the previous general pre-action protocol it was expressly recognised that neither party could or should be forced to mediate or enter into any other form of ADR, whereas that recognition has now disappeared from the new version of the protocol. There has therefore been an increased emphasis on this especially as a potential Claimant is now actually required to indicate to a potential Defendant in his letter of claim sent before any proceedings should be issued which form of ADR he considers the most suitable to resolve the dispute.

The second key change only applies, where the proposed Defendant is an individual and the claim relates to a debt. The Claimant must now:-

• Provide to the proposed Defendant details of how the money can be paid, for example, explaining the possible method of payment;
• Indicate to the proposed Defendant that he can contact the proposed Claimant to discuss repayment options (presumably even if the sum is sought to be paid in full immediately);
• Inform the Defendant that free independent advice and assistance can be obtained from various organisations including those listed in the protocol itself such as the National Debt Line, Consumer Credit Counselling Service, Citizens Advice and Community Legal Advice (the most recent incarnation of what was at one time known as Legal Aid, or State Funding) and give him 14 days to obtain it.
  

Although there are exemptions from compliance with this, the effect of this change is clearly to enable the proposed Defendant to obtain advice about the debt, but it is unclear as to whether it is expected that he will actually do so as a consequence of this notification being given. It may simply be that this will delay the issue of Court proceedings by a further 14 days.

75% of those responding to a survey conducted in 2008 by the Civil Justice Council acting on behalf of the Judiciary rejected the idea of introducing a new general pre-action protocol as detailed or imposing such obligations on the proposed Claimants as this, but the change is being made anyway. Clearly proposed Claimants will need to ensure that they comply with the new protocol or else face the possibility of the Court imposing sanctions as a result, such as limiting their costs recovery even if the claim is disputed and they are ultimately successful on the claim but where they had not complied with protocol before instigating Court proceedings.