Pre Action Protocol

Pre Action Protocol are a series of steps to be taken by a person who wishes to bring a claim to court. For the purposes of an “immigration matter”, those policy is different and is set out below. When deciding to go through this route, ICS Legal can advise on whether this is appropriate, given that not all matters are advisable to go through litigation. You can contact our team on 0207 237 3388 or email us on info@icslegal.com with the latest decision letter from the Home Office. 

The Pre Action Protocol claim letter are not strictly part of the Civil Procedure Rules and don’t have the same status as those rules.  They should be followed by anyone who thinks they may have a dispute which may require litigation in court. Remember that if you have an automatic right to appeal against a decision, exercise this right unless there are reasons why it cannot be exercised. Further details can be found by clicking here.

Currently, there are protocols in place for 12 different types of claim, meaning not all disputes have a pre-action protocol in place to follow. If there is no pre-action protocol, parties should follow a practice direction called the ‘Practice Direction – Pre-action Conduct’. Further information can found here.

This aims to give some guidance on what should happen before anyone considers involving the courts. It states what should go into letters sent between the potential claimant and defendant.

Pre Action Protocol claim for the purposes of immigration matter

A pre-action protocol letter (PAP) is a legal letter written with specified evidences to the Home Office in order to try and resolve a dispute before court proceedings are started. The purpose is to avoid the time and cost of raising a claim for judicial review. The Pre Action Protocol letter identifies the matters to be raised in a letter, setting out the legal grounds and demonstrate how the decision was unlawful.

Failure to follow this protocol has legal consequences. One of the most important of these is about costs. If either party to a judicial review fails to follow the protocol they can be made to pay theirs and the other sides’ legal costs, even if they win the case. The pre-action protocol does not always apply in urgent cases, for example where departure arrangements have been set, or a person seeks to be released from immigration detention.

The purpose of a Pre Action Protocol claim

The purpose of the Pre Action Protocol directions is very clear and covers the following:

  • To encourage the parties to settle disputes through the use of Alternative Dispute Resolution (ADR) such as mediation and arbitration.
  • To ensure that parties are able to get all the information needed as soon as possible.
  • To allow suitable offers to resolve the issue to be made.
  • To ensure that, if the issue goes to court, it can be dealt with as quickly and simply as possible

The principle behind this is that all parties should attempt to discuss a solution; settlement of the dispute is possible in all but a minority of cases. Where a party refuses to act in a suitable way and the case goes to court, the party who has failed to attempt to sort out the problem may have to pay the costs of the other party. If there is no named pre-action protocol, the Pre-action conduct – practice direction should be followed.

There are some common elements throughout each of the protocols and pre-action conduct guidance, including how to write the initial letter. There is also guidance on the way a potential defendant should respond and details relating to the exchange of information and documents by the parties. Anyone considering litigation should always ensure that they collect together all relevant information, documentation and reports and keep them safe until they need to be produced (‘disclosure’).

Most importantly, each protocol encourages the use of ADR. In most cases, ADR will provide a more cost-effective means of reaching an agreement over the issue. The protocols also contain a suggested timeframe during which proceedings should not be issued at court to allow the parties to consider their positions and the wisdom of proceeding.

A person wishing to consult a solicitor should be aware that it may take several weeks or months to complete the pre-action steps. Those consulting a solicitor often believing they will be able to jump straight into court proceedings and obtain a ‘fix’ from the court. This is no longer the case, and a person would be badly advised to attempt to do this.

Where a person is unrepresented (that is, they do not have a solicitor guiding them through the pre-action steps), they should still try to follow appropriate pre-action conduct. However, it is advised to seek legal advice on such matters.

Pre Action Protocol letter are simply steps to be completed before issue of a claim at court. They are written in an understandable way and are there to ensure that as many problems as possible can be resolved without the need for a court hearing.

Pre Action Protocol FAQ

The “Pre Action Letter” must follow certain guidelines. The “defendant” must be given time to respond and usually, that should be clearly set out in the letter. Depending on the time frame of the decision served, and when lodging the pre action protocol letter, usually a response within 14 days should be given for the Home Office to respond.

In practice, it appears that the reasons need not be set out in as much details as any subsequent grounds, partly because, in many cases, the defendant will have greater knowledge of the background to the decision than a Judge reading the claim form. However, the defendant must be left in no doubt about the basis of the proposed challenge.

It is best practice to set out any “interim relief”, so the Home Office can consider this, should they decide to extend their time to reconsider the matter. Remember that judicial review applications must be lodged within 90 days from the date of the original decision being contested.

One exception to the need for a Pre Action Protocol letter before claim arises where the decision being challenged has been taken by a court or tribunal, because the decisions challenged will normally be a final decision.

Defendants obligation

The Judicial Review Pre Action Protocol letter sets out obligations for the defendant. Notably, this usually would be the Home Office. The letter warns that a failure to respond may have costs implications or the defendant may be penalised. The Court of Appeal has underlined the importance that a failure to respond to a Pre Action Protocol letter by the Home Office must be given a consideration by the relevant administrative authority for the failure on the defendant of not responding.

It is and continues to be unusual for the defendant of not responding to the claim. ICS Legal conducts a number of those Pre Action Protocol letter, as the rate of decisions have been unduly harsh on the appellants. Further to that, judicial review applications have become the final stage of challenging decisions, as right to appeal a decision has been removed with limited matters being allowed to challenge before the Tribunal.

Home Office depending on the complexity of the matter, sometimes requests an extension of time. This should be allowed depending on the time frame, as you need to keep an eye on the deadline of the judicial review application. As a consequence, you may not agree with the extension of time, setting out clearly the reasons why and ensure the defendant is told of their obligations.

The Home Office when responding to the Pre Action Protocol letter, will put forward their reasons whether they agree or disagree with the reasons set out by the appellant. They do not have to agree however they need to make sure that if a decision was wrongly made, then it is likely that the defendant may decide to reconsider her position again. The defendant can also request further documents and information, depending on the nature of the claim.