Better actions

Pre-action protocols are an effective tool to avoid litigation, but they are under-used says District Judge Robert Jordan

AN EARLY EXCHANGE of information may result in early resolution. That was the intention when pre-action protocols (PAPs) were introduced. Is this borne out by what has happened over the past 10 years or do the protocols simply add to the front-loaded costs?

In its editorial on PAPs, the White Book talks of their success as evidenced by the reduction in new litigation by 80 per cent in the High Court and 25 per cent in county courts. But this is not supported by statistics produced by the Courts Service. They show issue levels as being similar in 2006 and 1998 despite the increase in fees, with allocation to small and multi-track being about the same and fast-track nearly double. The civil jury is out on PAP effectiveness and costs efficiency.

Variety of timing

The PAPs follow a similar format with letter of claim, response and the rest but the timing varies. The attachments to each also vary. The Technology and Construction PAP while currently requiring a pre-action meeting also sets out that it may not be used as a tactical device to secure advantage for one party or to generate unnecessary costs. It says that in low-value cases the costs should be kept to a modest level. As with all the PAPs there is a restatement of the overriding objective and it should be read in that context. Indeed, the Commercial Court's working party's report on long trials which has just been published (see Solicitor's Journal, 7 December 2007) recommends that PAPs be made less burdensome and its various proposals will be tested in a six months pilot next year.

The Civil Procedure Rules 1998 (CPR) allow the court to take compliance into account when giving directions (CPR 3.1). The court can also take into account when making cost orders 'the extent to which parties followed any relevant pre-action protocol' (CPR 44.3[5] [b]).

There are numerous examples of the stance of the courts on non-compliance and failure to negotiate. In Taylor v KD Coach Hire ([2000] CLY 447) the defendant waited until after issue to negotiate and was ordered to pay the claimant's costs on an indemnity basis. In Linton v Williams Housing (2001] CLY 516) the defendant actually offered to settle one week before trial. This was held to be unreasonable conduct resulting in a costs order against the defendant.

In Daejan v Park West (2003] EWHC 2872) as a result of a claim being issued without proper investigation, on the claimant's application to significantly amend the statement of case the claimant was ordered to pay all the costs of the other side to date for non-compliance with the Technology and Construction Court (TCC) PAP. In Thomas Construction v Hyland and Power, TCC 8 March 2000, indemnity costs were awarded against a claimant who failed to comply with the draft TCC protocol. And in Jamaale v London Buses [2000] CLY 599 a district judge struck out an action for abuse of process where there had been non-compliance with the personal injury PAP.

No explanation

The first clue the court is given as to compliance is upon filing of the allocation questionnaires. Is there a PAP and, if so, has it been complied with? The parties are asked for an explanation for any non-compliance on a separate sheet. Since the introduction of the CPR I have never seen any explanation. Unless the court is alerted to any failure it would not be in a position to take any action. I would be surprised if there was wholesale compliance.

The reverse is that compliance can confer an advantage. A failure to respond on the issue of experts in personal injury proceedings can result in the defendant being refused their own expert.

The Protocol Practice Direction gives the court wide powers to deal with a defaulting party as can be seen from the above examples. It appears therefore that a remedy for non-compliance exists. The question is whether or not that remedy is used. The court has the power to deal with non-compliance and is willing to do so, yet, it is rarely asked. Perhaps it is time litigants made more use of this.

More protocols

At present there are nine PAPs. The Civil Justice Council (CJC) now oversees them. Two more are in the pipeline. A mortgage possession PAP is shortly to be taken out to consultation having been approved by the CJC. This is similar to the Rent Protocol and is badly needed. In addition, there has been a recent consultation as to whether all the protocols should be consolidated. Following resistance the CJC has decided not to proceed with consolidation but is producing for consultation a general protocol to cover all those cases that are not caught by the existing protocols.

The consultation on the general protocol will also be used to challenge the respective stakeholders to review and update their existing protocols. It will be taking place shortly. Subject to the consultation, it is the CJC's intention to have the new protocols in place next year.

The CJC is aware of the importance of compliance with the PAPs. Although disappointed that an opportunity to consolidate and simplify the protocols was not approved following consultation, it sees a general PAP (as contemplated in 2002 by the Lord Chancellor's Department) as an opportunity to rationalise all the PAPs.

In my view, it is not a case that the PAPs are ineffective. It is more the case that they remain in the toolbox gathering dust. They still remain the most important tool to avoid litigation.