Pre-action protocol

McGlinn v Waltham Contractors Ltd and others [2005] EWHC 1419 (QB); TCC 6 July

In a matter of construction of s51 of the Supreme Court Act 1981, costs incurred in complying with any pre-action protocol are capable of being costs ‘incidental to’ any proceedings which were subsequently commenced. However, only in exceptional circumstances could costs incurred by a defendant at the stage of a pre-action protocol, in dealing with and responding to issues which were subsequently dropped from the action when the proceedings were commenced, be costs ‘incidental to’ those proceedings. It would be contrary to the whole purpose of the pre-action protocols if claiming parties were routinely penalised if they decided not to pursue claims in court which they had originally included in their protocol claim letters. The whole purpose of pre-action protocol procedure was to narrow issues and to allow a prospective defendant, wherever possible, to demonstrate to a prospective claimant that a particular claim was doomed to failure. It would be wrong in principle to penalise a claimant for abandoning claims which the defendant had demonstrated were not going to succeed because to do so would be to penalise the claimant for doing the very thing which the protocol was designed to achieve.