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DJ Robert Jordan mulls over the merits of checklists for pre-action protocols

17 January 2011

Litigation is the last resort. That was thrust of the new legal framework created by the Civil Procedure Rules 1998 when we had a decent civil legal aid scheme. Nothing has changed except for the virtual destruction of legal aid.

To help the parties reach an agreement, the CPR encourage an early exchange of information. The introduction of pre-action disclosure emphasises this. CPR 1.4(2), which defines active case management, encourages both cooperation and the use of alternative dispute resolution. And then there are the protocols.

The court’s role is to treat the protocols as a reasonable approach to pre-action conduct and, where appropriate, impose sanctions for breach. There are few authorities on the topic but it is unlikely that a district judge’s decision to strike out a claim for non-compliance with the personal injury protocol as being an abuse would be upheld on appeal.

For example, consider Jimaale v London Buses [2000] CLY 599 and contra...

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