Pre-action protocols in the United Kingdom

Specific pre-action protocols

5.13 Pre-action protocols were established in the UK in 1999, following Lord Woolf’s Access to Justice report (the Woolf Report) in 1996, in which he identified a need to enable

parties to a dispute to embark on meaningful negotiations as soon as the possibility of litigation is identified, and ensure that as early as possible they have the relevant information to define their claims and to make realistic offers to settle.^[16]

5.14 The Woolf Report recommended that:

• pre-action protocols should set out codes of sensible practice which parties are expected to follow when faced with the prospect of litigation;

• when a protocol is established for a particular area of litigation, it should be incorporated into a relevant practice guide;

• unreasonable failure by either party to comply with the relevant protocols should be taken into account by the court, for example in the allocation of costs or in considering any application for an extension of the timetable; and

• the operation of protocols should be monitored and their detailed provisions modified as far as is necessary in light of practical experience.^[17]

5.15 Subsequently, pre-action protocols relating to specific types of claims were adopted by way of practice directions. There are currently 10 pre-action protocols in the UK covering a wide range of claims,^[18] as set out in the following table:

5.16 These specific pre-action protocols vary from imposing mandatory procedural obligations on parties, to simply acting as a general guide to good practice. The Victorian Law Reform Commission notes that the more detailed and lengthy protocols in the UK have, in some ways, constituted their own procedural code.^[19] For example, the Personal Injury Claims Protocol sets out steps that must be taken by both parties, and includes draft templates that can be tailored to meet the circumstances of the particular claim.^[20] On the other hand, the pre-action protocol for Disease and Illness Claims provides that:

This protocol is not a comprehensive code governing all steps in disease claims. Rather it attempts to set out a code of good practice which parties should follow.^[21]

General pre-action protocol

5.17 For actions where no specific pre-action protocol applies, the Practice Direction —Pre-Action Conduct (the Direction) sets out the conduct a court would normally expect of prospective parties prior to the start of the proceedings.^[22]

5.18 The Direction provides that, unless the circumstances make it inappropriate, the parties should:

• exchange sufficient information about the matter to allow them to understand each other’s position and make informed decisions about settlement and how to proceed; and

• make appropriate attempts to resolve the matter without starting proceedings, and in particular consider the use of an appropriate form of ADR to do so.^[23]

5.19 The Direction provides guidance on the nature and the extent of the information to be provided in the letter by the claimant, and the response by the defendant.^[24] It also provides that documents disclosed by either party in accordance with the Direction may not be used for any purpose other than resolving the dispute, unless the other party agrees in writing.^[25]

5.20 The Direction also recognises that there are some types of applications where pre-action protocols ‘clearly cannot and should not apply’.^[26] These include, but are not limited to: applications for consent orders; applications where there is no other party for the applicant to engage with; most applications for directions by a trustee or other fiduciary; and applications where telling the other potential party in advance would defeat the purpose of the application (for example, an application for an order to freeze assets).^[27]

Compliance and enforcement

5.21 The CPR enables the court to take into account compliance (or non-compliance) with the Direction and applicable protocols when giving direction on the management of proceedings and when making orders as to costs.^[28] The protocols are not intended to be exhaustive, but rather:

Protocols are codes of best practice, to be followed generally but not slavishly … Reasonableness is a watch word. The court is much more interested in compliance with the spirit of the protocol than the exact letter.^[29]

5.22 When considering the extent of compliance, the court will take into account:

• the extent to which the parties have complied in substance with the relevant principles and requirements and is not likely to be concerned with minor or technical shortcomings;

• the proportionality of the steps taken compared to the size and importance of the matter; and

• the urgency of the matter.^[30]

5.23 Relevant examples of non-compliance by a party include: not providing sufficient information to enable the other party to understand the issues; not acting within a time limit, or within a reasonable period; unreasonably refusing to consider ADR; or without good reason, not disclosing documents requested to be disclosed.^[31]

5.24 If the court is of the opinion that there has been non-compliance, the following sanctions are available:

• staying the proceedings until the steps that ought to have been taken, have been taken;

• an order that the party at fault pay the cost of the proceedings, or part of those costs of the other party;

• an order that the party at fault pay those costs on an indemnity basis;

• if the party at fault is the claimant in whose favour an order for the payment of damages or some specified sum is subsequently made, an order that the claimant is deprived of interest on all or part of that sum, and/or awarding that interest at a lower rate than that at which interest would otherwise have been awarded; and

• if the party at fault is the defendant, and an order for the payment of damages or some other specified sum is subsequently made in favour of the claimant, an order awarding interest on such sum and in respect of such period as may be specified at a higher rate, not exceeding 10% above the base rate, than would otherwise have been awarded.^[32]