Litigation in England and Wales is designed so that most disputes settle before a judge sees them. The rules that make that happen are the pre-action protocols, and how well you follow them affects both the outcome and what it costs.
The general rule
Where no specific protocol applies — most business-to-business contract disputes — the Practice Direction on Pre-Action Conduct and Protocols sets the minimum. In summary, before issuing a claim you should:
- write to the other side setting out the basis of your claim, the facts, what you want, and how any sum is calculated;
- give them a reasonable time to respond — 14 days for a simple matter, up to three months for a complex one;
- exchange the key documents;
- consider, and be seen to consider, alternative dispute resolution;
- try to narrow the issues.
Specific protocols apply to particular disputes: debt claims against individuals, construction and engineering disputes, and professional negligence among them. Each has its own timetable and content requirements.
The letter of claim
Your letter of claim is the single most important document in the pre-action phase. It will be read by the other side's solicitor, and later by a judge deciding whether you behaved reasonably. It should:
- Be headed as a letter of claim (or letter before action) and state that the Practice Direction applies.
- Set out the facts concisely and in chronological order.
- Identify the contract and the terms breached.
- Explain your loss and how the figure is calculated, with supporting documents listed.
- State what you want and by when.
- Propose a form of ADR, and ask them to say whether they agree.
A letter that overstates the claim, or threatens consequences you cannot deliver, does you no favours. Solicitors read hundreds of these; measured and specific is more persuasive than fierce.
Alternative dispute resolution
Mediation — a structured negotiation with an independent mediator — settles the majority of commercial disputes that go through it, typically in a day. Since Churchill v Merthyr Tydfil County Borough Council (2023) the court has power to order parties into ADR, and the Civil Procedure Rules were amended in October 2024 to reflect that. For small claims of £10,000 or less issued from 22 May 2024, a free HMCTS telephone mediation is generally a mandatory step.
Refusing a reasonable offer of mediation is a well-established reason for a court to reduce the costs you recover, even if you win.
Tracks and what they mean for costs
When a claim is defended, the court allocates it to a track. The track determines how much of your legal spend you can recover if you succeed:
| Track | Value | Costs recovery |
|---|---|---|
| Small claims | up to £10,000 | Fixed court fees and very limited costs only. Your own solicitor's fees are effectively unrecoverable. |
| Fast track | £10,000 – £25,000 | Fixed recoverable costs, by stage and complexity band. |
| Intermediate track | £25,000 – £100,000 | Fixed recoverable costs, by stage and band. |
| Multi-track | over £100,000, or complex | Costs assessed by the court — typically 60–70% of actual spend for the winner. |
Fixed recoverable costs have applied to the fast and intermediate tracks for claims issued from 1 October 2023. The practical effect is that on a £15,000 claim, the difference between what you spend and what you recover can be most of the money in dispute. That is why a solicitor's first questions are about value and evidence, not the merits.
Part 36 offers
A Part 36 offer is a formal settlement offer with built-in costs consequences. If you make one and the other side does worse at trial than your offer, they pay enhanced interest and costs. If they make one and you do worse, you pay their costs from the date the offer expired. Made early and pitched carefully, a Part 36 offer is the most powerful settlement tool a claimant has.
What a solicitor will want from you
- A one-page chronology, with dates.
- The contract and the documents that evidence the breach.
- A calculation of your loss, with the underlying figures.
- What you have already sent to the other side, and their replies.
- Your realistic objective, and your budget for getting there.
This guide is general information about civil procedure in England and Wales. It is not legal advice. Pre-action steps do not stop the limitation clock — if a deadline is close, a solicitor may need to issue protectively or agree a standstill.
Frequently asked
What happens if I ignore the pre-action steps and just issue a claim?
The court can penalise you in costs, stay the claim while you comply, or reduce interest on any sum you recover. Since the Court of Appeal's decision in Churchill v Merthyr Tydfil (2023), the court can also order parties to engage in ADR.
Is mediation compulsory?
Not in all cases, but for small claims of £10,000 or less issued from May 2024 a free one-hour telephone mediation with HMCTS is generally mandatory, and in other cases an unreasonable refusal to mediate can be penalised in costs.
Next step
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