UK: Pre-action Protocols

Pre-action Protocols were introduced as part of the Woolf Reforms in 1999. The intention was that, by requiring parties to enter into a formal exchange of correspondence setting out their respective positions in relation to claims, and providing where appropriate for the disclosure of documents and witness evidence, the parties could properly evaluate their cases at an early stage and potentially settle their differences without actually needing to issue proceedings. That would save the parties money and reduce the administrative burden on courts.

Of course, prior to 1999, it was common for the claimants to write letters before action, the purpose of a Protocol is to take that a stage further and in particular to require a formal response.

The procedural rules relating to Protocols are set out in the Pre-action Protocol Practice Direction. There are, however, relevant passages elsewhere in the CPR. In particular, Part 44, which deals with the question of recoverability of costs, contains specific references to pre-action behaviour and correspondence; and Part 31 contains provisions for pre-action disclosure. Both of those Parts are referred to in more detail below.

The rules on pre-action behaviour differ according to whether there is an approved Protocol in place. At present there are compulsory Protocols for the following:

• Personal injury claims
• Clinical disputes
• Defamation
• Construction & Engineering disputes
• Judicial Review
• Professional negligence

There are also a number of draft Protocols (e.g. for debt claims) whose use is not compulsory. The Lord Chancellor’s Department also recently circulated a paper for consultation relating to a general Protocol which it is intended would apply to all disputes.

Whilst the details of each Protocol, naturally, vary according to circumstances, the general structure is as follows

• The claimant is to send a brief letter indicating the nature of the claim, including the remedies sought, as soon as practicable after the issue arises.
• That is followed by a detailed letter of claim.
• The proposed defendant is to acknowledge receipt of the above, usually within 14 days.
• The proposed defendant is to provide a detailed reply to the detailed claim within a further timescale, usually 3 months.
• There is provision for pre-action disclosure by both parties.
• The detailed reply by the defendant should indicate, if the claim is denied, the detailed basis of the Defence.
• The detailed response from the defendant may also include an offer to mediate in which case a further time period for mediation comes into play.

Whilst it is the intention that each party is able to conduct a proper evaluation of the case being made against it, so that some degree of precision is necessary, the Protocols specifically warn against duplicating, in correspondence, the formal pleadings process, the costs of which the whole concept is designed to avoid.

It is clear from the above that the entire procedure from start to finish is likely to take at least 6 months. Time can generally be cut short only where one party fails to comply with the protocol or there is some overriding requirement which makes it reasonable to reduce the applicable time.

Under the Protocol Practice Direction, paragraphs 2.2 – 2.4, failure to comply with a compulsory Protocol resulting in unnecessary proceedings or issues being issued or litigated can lead to either;

• an Order for costs against the offending party, possibly on an indemnity basis (and regardless if they are successful on the main claim); or
• where monetary payment is involved, an increase or reduction (depending on whether the offending party is paying or receiving) in the interest rates applicable to the payment.

It is stated that the object of applying these penalties is to leave the innocent party in no worse position than if the Protocol had been followed.

It will be noticed at once that in order to establish these penalties it is necessary not only to show that the Protocol was not followed, but also that the litigation would otherwise have been avoided. That is going to be difficult if the matter has been pursued to trial. It seems likely that these provisions will only bite where one party concedes the case or an issue as a result of a disclosure or clarification in the course of proceedings which would have been made earlier if the Protocol procedure had been followed in the first place.

Where there is no compulsory Protocol, the Protocol Practice Direction, paragraph 4, says that the Court will require the parties to act reasonably "in accordance with the overriding objective" in exchanging information and documents and generally in trying to avoid a necessity for the start of proceedings.

In other words the indication is that even if there is no actual Protocol in place, the parties should at least to some extent act as though there was. There are no specific penalties for failing to comply with this provision, but Part 44 which deals with the assessment of costs, specifically directs the Courts to have regard to the question of whether the parties have conducted themselves reasonably, both before and after the issue of proceedings and in relation to the proceedings themselves and individual issues. The implication is that where parties have not at least attempted the rudiments of Protocol exchanges of information prior to issuing proceedings, there could be a costs penalty. This factor is to be borne in mind both when deciding responsibility for costs in the first place and also in subsequently assessing those costs.

Part 31, which deals with disclosure of documents generally, also provides for the disclosure of documents prior to the commencement of proceedings. A party making such an application has to establish that there is likely to be litigation between it and the other party, that the documents sought would form part of standard disclosure within that dispute, and that in the circumstances the Court should exercise its discretion to order disclosure.

There is no specific cross-reference in Part 31 to the existence or otherwise of Protocols. The Protocols, however, state that their provisions do not override Part 31. It seems likely, therefore, that when applying for disclosure under Part 31 the Court will have regard to whether or not a Protocol is in place and, if so, its terms.

Anecdotal evidence suggests that the Protocol procedure is not, in the main, working in the way it was intended. Claimants are commonly criticised for using the protocol procedure to "fish" for evidence of claims, defendants for using it to drag out the time before proceedings can be issued, presumably in the hope that the delay and cost will encourage the claimant to settle on unfavourable terms or to lose interest altogether. There is also a tendency to replicate the pleadings process by requiring ever more precise details of exactly what is alleged, rather than engaging with the actual issues and trying to narrow them.

In April 2002 a survey commissioned by the Law Society and the Civil Justice Council was published. It was intended to assess pre-action behaviour in personal injury, clinical negligence and housing claims and involved interviews with lawyers, as well as a comparative study of 300 pre and post Woolf personal injury case files. The results are therefore only relevant in these areas, and the files studied tended to involve smaller claims and the fast track procedure (a simpler procedure than the multi-track procedure used for high value, complex commercial cases). The results found that, in general, the protocols have been well received. However, in all of the three areas studied, there were underlying criticisms of the protocols, including: opponents fail to reply to a letter of claim or reply late; there are a lack of sanctions on those who fail to act reasonably; deadlines set by the protocols are not realistic; and they result in an increased front-loading of costs, as well as an overall increase in costs. The results also showed that there was no change in the overall timescale of cases being resolved; and while there may have been an increase in the quality of information provided, there was no reduction in the quantity of correspondence between the parties. Finally, while the prospects of settlement may have improved due to the protocols procedure, there was not much empirical evidence of this in the files studied in the survey.

Clearly in some cases the pre-action process may result in an early recognition of the strengths and weaknesses of the parties respective arguments and a settlement through mediation or otherwise. In the majority of cases, however, the result is simply that the parties have to indulge in an expensive and protracted exchange of correspondence, all of which is duplicated when proceedings are finally issued and Statements of Case are actually served.

© Herbert Smith 2002

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