Pre-action protocols and additional claims

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Pre-action protocols and additional claims
  • Do the pre-action protocols apply to Part 20 proceedings?
  • Will the court order a stay to allow compliance with a pre-action protocol?
  • What factors will the court take into account when deciding whether to order a stay?
  • Practical tips

Pre-action protocols and additional claims

For general information on the Practice Direction Pre-Action Conduct and Protocols, as well as the various pre-action protocols, see Practice Notes:

  1. Pre-action behaviour in non-protocol cases—Practice Direction Pre-Action Conduct and Protocols

  2. The pre-action protocols and when they apply

Do the pre-action protocols apply to Part 20 proceedings?

The language of the pre-action protocols and the Practice Direction Pre-Action Conduct and Protocols (the Practice Direction) suggests that they are aimed at parties who are about to embark upon litigation and they do not expressly address the position of other parties who may become involved as the litigation proceeds. However, it is acknowledged (for example in Daejan Investments v Park West Club (Part 20 - Buxton Associates) and Alfred McAlpine Capital Projects v SIAC Construction) that in general, parties are expected to comply with the pre-action protocols or the Practice Direction where additional parties are brought into an existing action, unless this is inappropriate in the specific circumstances.

Will the court order a stay to allow compliance with a pre-action protocol?

There is no specific provision in the pre-action protocols or the Practice Direction Pre-Action Conduct and Protocols dealing with the power for the court to order a stay to facilitate compliance with a protocol or the Practice Direction when a new party is added. However, pursuant to para 15(b) of the Practice Direction, the court may

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