Woolf - a year on: Pre-action protocols

Introduction

Pre-action protocols are another creation of the Civil Procedure Rules designed to encourage a full exchange of information before proceedings are commenced in the hope that the issues between the parties will be able to be narrowed as far as possible, or the matter settled in its entirety without the need for court involvement.

Current and forthcoming protocols

Currently there are only two pre-action protocols in operation - those for personal injury and clinical negligence. A number of others are being drafted. These include contentious probate, debt, defamation, discrimination, expert witness code of guidance, holiday claim, housing disrepair, intellectual property, judicial review, model protocol, mortgage possession, police malpractice, professional negligence, rent arrears, road traffic accidents, solicitors' negligence, Technology and Construction Court/other specialist jurisdictions, uninsured motorists, utilities, wrongful dismissal and Year 2000 claims. For cases not covered (or not currently covered) by a pre-action protocol, the Practice Direction on protocols states that "the court will expect the parties, in accordance with the overriding objective...to act reasonably in exchanging information and documents relevant to the claim and generally in trying to avoid the necessity for the start of proceedings." (The "overriding objective" of the CPR is to deal with cases justly).

Sanctions

The Court will take into account the use (or not) of protocols when it comes to deciding the costs in proceedings which do go ahead. Failure to follow a protocol (or to act reasonably in the exchange of information in circumstances where protocols do not yet exist) is likely to have adverse costs consequences.

Criticisms

There has been some criticism of the pre-action protocol procedure, concentrating mostly on the disparity in the amount of time which the claimant and defendant have to get the relevant information together. A claimant in a person injury action, for example, has three years from the date of the injury within which to commence proceedings, and so arguably three years in which to assemble all of the information needed to comply with the pre-action protocol. A defendant, however, has only three months within which to investigate the claim and respond, stating whether liability is admitted or denied. Overall, however, the objectives of the protocol system are very positive, and should work to reduce the number of unnecessary claims which are lodged with the Courts.

Conclusion

The most significant changes introduced by the pre-action protocol system are an obligation on both parties to consider settlement and/or Alternative Dispute Resolution, thereby taking away the fear of being the "first to blink" and the introduction of a three month delay for the defendant to investigate, consider and respond to the claim. Similar proposals may in fact be appropriate for many more claims, and, if properly used, pre-action protocols can avoid the escalation of claims into unnecessary Court proceedings.

For further information contact Tim Hardy, Head of Commercial Litigation and Dispute Resolution on +44 (0)20 7367 3000 or e-mail [email protected].