Pre‑Action Protocol: 10 years since the Legal Services Regulation Act 2015 the pre-action protocol is still not in place

A pre-action protocol is a set of steps that would be taken before legal proceedings are started. The aim is to:

• Help both sides understand the issues
• Share key information early (such as medical records and expert opinion)
• Explore settlement or mediation, avoiding court if possible
• Reduce costs and delays

Background

In 2015, the Irish government passed the Legal Services Regulation Act 2015 (2015 Act) allowing for the introduction of a mandatory pre-action protocol for clinical negligence cases. The idea was to:

• Encourage early sharing of medical records and expert evidence
• Require formal notification of a claim before court proceedings
• Encourage use of alternative dispute resolution (ADR)
• Allow courts to penalise parties who don’t follow the protocol

Law firms, patient groups, and medical professional organisations have been publicly pressing the government to implement the protocols. However, as of now, November 2025, the protocol has not been formally introduced. The government has not yet published or commenced the specific regulations needed to bring it into effect however draft regulations are expected by the end of 2025.

What Happens in Practice Right Now?

Even without a formal protocol, experienced solicitors follow a best-practice approach to prepare a case carefully before any court proceedings.

That usually includes:

• Gathering full medical records from all relevant providers
• Getting independent expert medical reports to assess if there was negligence
• Writing a formal letter of claim to the hospital, doctor, or insurer outlining the allegations
• Giving the proposed defendant a chance to respond before issuing court proceedings

Strengths and Positive Aspects of a Pre-Action protocol

• Legal certainty once protocol exists: In clinical negligence, once a formal protocol is in place, the parties will know what to expect in terms of time limits, file disclosure, Alternative Dispute Resolution obligations.
• Cost and time savings potential: Where early settlement or mediation is successful, both parties avoid the expense and delay of trial.
• Incentivising reasonableness: Sanctions for non‑compliance (in the clinical negligence regime) provide grounds to enforce pre‑action discipline.

Weaknesses, Challenges and Practical Difficulties of a Pre-Action protocol

• Regulatory gap in clinical negligence: The fact that the detailed regulations have not been drafted means that the statutory pre-action regime has yet to be seen in practice. This means there is uncertainty for both plaintiffs and defendants until the protocol comes into force.
• Limited scope and reluctance to engage in mediation or settlement: Even where mediation is available, parties or insurers may be reluctant to engage seriously until proceedings are issued, especially if the defendant believes they have a strong defence.
• Judicial attitudes and inconsistent sanctioning: The effectiveness of a protocol ultimately depends on the courts’ willingness to apply sanctions for non‑compliance. If courts are reluctant to penalise parties for informal breaches, there may not be a strong deterrent to comply, this remains to be seen.
• Statute of limitations and delays: In personal injury claims, a plaintiff has 2 years from the date of injury or date of knowledge of the injury to issue proceedings. Solicitors and patients must be vigilant in issuing protective notices.
• Cost and cultural background: Pre‑action can be expensive in terms of investigations and review of records, expert reports, disclosure and legal fees. In Ireland, litigation has traditionally been adversarial; however this is shifting somewhat to a more cooperative, early disclosure culture. This requires co-operation from legal advisors and their clients, insurers, medical bodies, and the courts.

The Road Ahead

The success of a pre‑action regime in Ireland will depend on several key developments:

1. Finalisation and commencement of clinical negligence regulations

The government must enact the detailed regulations under the 2015 Act to give substance to the clinical negligence protocol.

2. Strengthening of sanction enforcement

Courts must adopt firm and consistent approach to costs, interest, stays or other penalty measures for protocol breach. This will ensure real behavioural change and speed up the process for all parties.

3. Judicially endorsed practice directions

The superior courts may issue practice directions or pre-action checklists to guide practitioners and litigants.

4. Experience, evaluation, and accountability

Evaluation of the effects of pre-action protocols (e.g. reduction in litigation volume, shorter case durations, lowering of costs) will provide experience and evidence to further refine the regime.

5. Professional training and cultural shift

Solicitors, insurers, medical professionals and expert witnesses must be educated to embrace earlier disclosure and cooperative resolution of cases.

Conclusion

Ireland’s pre-action protocol landscape is a work in progress. In personal injury law, the Injuries Resolution Board regime operates as a de facto mandatory pre‑action filter. In clinical negligence, statutory scaffolding exists but the full regime is yet to be activated.

The parties who embrace early disclosure, structured negotiation, and realistic cost/benefit analysis will likely be well placed as the system changes. Ultimately, a robust and enforced pre-action framework offers real progress in that there will likely be more timely justice and fewer costly trials leading to a more efficient litigation system in Ireland.

Contact us at Cantillons Solicitors at +353 (0)21 4275673 or info@cantillons.com  if you would like more information.

* In contentious business, a Solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.  Many Personal Injury Solicitors portray themselves as “no win no fee Solicitors Cork”. This term can be misleading and it is essential that you discuss fees with the Personal Injury Solicitor you ultimately choose. At Cantillons Solicitors, we are entirely transparent.