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. For a debt, see the letter before action for an unpaid invoice; for building work, see resolving a builder dispute.
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 clearly identified as a letter of claim (or letter before action); it is usual, though not required, to say which Practice Direction or protocol it is sent under.
- 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 is a structured negotiation with an independent mediator, who helps the parties reach their own agreement and does not decide who is right. Since Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 the court has power to order parties to engage in ADR, and the Civil Procedure Rules now say so expressly (rule 3.1(2)(o)). Under a pilot scheme running from 22 May 2024 to 6 April 2027 (at the time of writing, October 2026), a defended small claim in which the only remedy claimed is a specified sum of money is referred automatically to a free telephone appointment with the Small Claims Mediation Service.
Unreasonably refusing, or ignoring, an invitation to mediate is a well-established reason for a court to reduce the costs a party recovers, even if that party wins.
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, which allows only what is reasonable and proportionate. |
Fixed recoverable costs have applied to the fast and intermediate tracks for claims issued from 1 October 2023. The practical effect is that the winner's actual legal spend can be more than the fixed sum the loser is ordered to pay, and on a smaller claim that gap matters. That is why a solicitor's first questions are about value and evidence, not only the merits. The limits in the table are those in force at the time of writing (October 2026); which court track and what costs you recover sets out the detail.
Part 36 offers
A Part 36 offer is a formal settlement offer with built-in costs consequences. If a claimant makes one and the judgment is at least as good for them as their offer, the court will, unless it considers it unjust, award enhanced interest and additional costs. If a defendant makes one and the claimant fails to beat it, the court will, unless it considers it unjust, order the claimant to pay the defendant's costs from the end of the offer's acceptance period. Part 36 does not apply to claims on the small claims track.
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. Under a pilot scheme due to run until 6 April 2027 (at the time of writing, October 2026), a defended small claim for a specified sum of money is referred automatically to a free telephone mediation appointment of up to one hour with the court's Small Claims Mediation Service. In other cases an unreasonable refusal to engage in ADR can be penalised in costs.