Pre-Action Protocols

11-06-2012 10:38

As part of its attempts to reduce the costs of litigation and/or resolve disputes (where possible) without recourse to the courts, the court has produced a number of “Pre-Action Protocols” following Lord Woolf’s Access to Justice report in 1996. The protocols offer guidance to parties engaged in a dispute as to matters to be considered and steps to be taken before proceedings are commenced. The purpose of the protocols would appear to be to ensure (in so far as possible) that parties to a dispute are aware of the parameters of the dispute and have taken an opportunity to resolve the dispute without recourse to the court. Lord Woolf said of pre-action protocols:

“[the protocols] are intended to build on and increase the benefits of early but well informed settlements which genuinely satisfy both parties to disputes.”

The potential benefits of compliance with the protocol include a more focussed approach to the dispute. The parties should understand the dispute in more detail following compliance with the protocol and the court’s time and resource should not be wasted. The protocols will usually require the parties to meet at an early stage to discuss the dispute. This can assist in settling the dispute at an early stage, saving the parties costs.

One of the drawbacks of compliance with a protocol is that litigation costs may be “front loaded” into the protocol process before proceedings have even commenced. If a dispute will require court proceedings whether or not the protocol process is followed, the cost of following the protocol may be seen to be wasted.

The court is keen to ensure that parties comply with any relevant protocol and there may be costs sanctions against any non-complying party. A measured approach to dealing with any protocol that applies to the dispute would appear to be key.

Protocols exist in respect of a number of different types of dispute, for example, Construction & Engineering Disputes, Professional Negligence claims and certain Possession Claims. There have in the past been discussions and consultations regarding a possible “general” pre-action protocol, however, this idea appears to have been abandoned. There are also protocols prepared by non-judicial bodies that are in effect adopted by the court as pre-action protocols, see for example the Property Litigation Association’s pre action protocol for dilapidation claims.

If you would like more information regarding the pre-action protocols please contact Philip Vickers.

 

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