What are pre-action protocols?
Pre-action protocols set out the conduct that you are expected to adhere to before commencing proceedings for civil claims, they can be found within the civil procedure rules. The pre-action protocol for judicial review outlines the steps that you must take before you seek a judicial review. The protocol also outlines the pre-action conduct expected from the defendant, in judicial review cases for immigration and asylum issues this is usually the Home Office.
If either party fails to follow the pre-action rules then this will be taken into account at a later point in the legal proceedings and sanctions may be imposed. If you lose your case then you could be ordered to pay additional costs for failing to follow the pre-action protocol and if you win your case then any costs that you are awarded could be reduced if you have not followed the proper pre-action steps.
Objectives of the pre-action protocol for judicial review
The pre-action protocol for judicial review has 5 main objectives, they include:
- To identify and gain a better understanding of the issue you are disputing in your claim by sharing relevant information and documents.
- To decide whether to proceed with legal proceedings and how to do so.
- To make attempts to settle the dispute without the use of court proceedings.
- To lower the cost of resolving your dispute and to avoid expenses that are unnecessary.
- To ensure that proceedings are efficiently managed in cases where civil litigation cannot be avoided.
To meet these objectives, the protocol lays out the following steps that you should follow in the pre-action stage. These are detailed below.
Alternative Dispute Resolution
A judicial review should only be sought as a last resort, this is why the first step outlined in the pre-action protocol is to attempt to find an alternative dispute resolution (ADR). The court may ask you for evidence that you have attempted to use alternative routes to settle the dispute prior to seeking judicial review.
The pre-action protocol does not list all of the methods that could be used as ADR but some that it does list include:
- Discussion and negotiation
- Other complaints procedures
It’s worth noting that whilst attempting to find an alternative dispute resolution is a key part of pre-action conduct, following this step can not be used as an excuse for missing the deadline for seeking a judicial review. The time limit to submit an application for judicial review is no later than 3 months after the cause for claim occurred.
Requesting information and documents
Prior to judicial review, the pre-action protocol states that you have a right to request information and documents from the Home Office, this is known as pre-action disclosure. The protocol states that your requests for information and documents should be proportionate and can be for the following reasons:
- To understand the basis of a decision
- To identify the issues that you are making a complaint about
The public body that you are making the complaint against must comply with your proportionate requests for information and documents unless they can give a good reason for not doing so. If they fail to provide you with the requested information then they could face cost sanctions.
Letter before the claim
Another key element of the expected conduct set out in the pre-action protocol is the letter before the claim. The letter before claim refers to a letter that you should send to the defendant so that the issue in dispute can be identified and to find out whether there is a way to settle the dispute without litigation.
Your letter must contain some very specific information, this includes:
- The date and details of the decision, act or omission that you are challenging
- A summary of the facts and the legal basis for your claim
- Details of any information or documents you are requesting from the defendant and why this is relevant to your claim
- Details of any person that you know who is affected by your claim, any Interested Party should also be sent a letter before the claim
- Your proposed reply date, you should usually give at least 14 days
- If you are going to ask for a protective costs order you should explain your reasons for this in the letter
You must make sure that your letter is sent in good time so that you have time to receive a response before the time limit for making an application for judicial review expires.
The Home Office has its own form for claims about asylum and immigration issues that you can fill in and submit via email instead of a letter before the claim. By filling in this form you will meet all of the letter before claim requirements outlined in the pre-action protocol, however, you do not need to use the Home Office’s standardised form if you do not wish and you can send your own letter instead.
Letter of response
As well as detailing the requirements for the letter before claim, the pre-action protocol also lays out what is expected of defending parties when it comes to a letter of response. It states that defendants should usually respond to a letter before claim within 14 days and that failure to do so will be taken into account by the court and sanctions could be imposed unless the defendant can prove that they had good reasons for not meeting the reply date.
The letter of response should make it clear whether the claim is being conceded in full, conceded in part or is not being conceded at all. The rest of the information that must be included in the letter will vary depending on the case but the letter may need to:
- Contain a new decision
- Identify which aspects of the claim are being conceded and which are not
- Give a timescale for when the new decision will be issued
- Give a more in-depth explanation for the decision
- Address any of the points being disputed in the claim
- Enclose documents that the claimant requested or reasons why these cannot be provided
- Confirm whether an application for an interim remedy will be opposed
- A response to a request for a protective costs order if one has been made
If the defendant cannot reply by the proposed response date then they are expected to issue an interim response. In this interim response, they should ask for an extension of the response date and should give a date by which they can properly respond by. They should also give the reasons for this extension and may need to supply other additional information.
Urgent judicial review cases
If your claim for judicial review is urgent then you are not expected to follow the steps laid out in the pre-action protocol and should instead submit your claim immediately. You will need to determine for yourself whether your claim can be deemed as urgent, if it is found to not be urgent and you have not followed the pre-action protocol then you could still face sanctions.
According to the pre-action protocol, examples of urgent claims could include cases in which a claimant is facing removal from the UK or where there is an urgent need for an interim order to force urge a public body to act where they have refused to do so unlawfully.
How can London Immigration Lawyer help?
UK immigration law is incredibly complex and understanding the pre-action protocol and all the steps that you must take before making your claim for judicial review can be difficult. If you plan to apply for judicial review it is highly advised that you seek professional legal advice from an immigration expert.
Our London immigration lawyers can assess whether your dispute is eligible for judicial review, explain the pre-action rules to you and guide you through the steps outlined in the pre-action protocol. The support that we can offer during the pre-action period includes:
- Ensuring full compliance with the pre-action conduct outlined in the protocol
- Liaising with the Home Office or other defendant on your behalf to make appropriate attempts at finding an alternative way to settle the dispute outside of court proceedings
- Writing a letter of claim that includes sufficient information according to the protocol and sending this within good time
- Offering advice regarding the key documents and information that you should request to aid your case
For more information about our judicial review services, or to book a legal advice session today, contact us on 020 4502 8582.
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A pre-action protocol outlines the steps that the court would expect both parties to take prior to commencing legal proceedings. The pre-action protocol can be found within the civil procedure rules.
The court will expect parties to have followed the pre-action protocol and if either party have failed to do this then the court will take this into consideration at a later point during legal proceedings and may impose sanctions on either party.