11.4 Pre-action protocols—a series of procedural requirements that are a pre-requisite to commencing litigation—are generally aimed at encouraging settlement, and where settlement is not achieved, narrowing the issues in dispute to facilitate a more efficient and cost-effective trial process.
11.5 Pre-action protocols can cover a spectrum of procedural requirements that may include:
- the need to disclose information or documents in relation to the cause of action;
- the need to correspond, and potentially meet, with the person or entity involved in the dispute;
- undertaking, in good faith, some form of alternative dispute resolution (ADR); and
- conducting genuine and reasonable negotiations with a view to settling the matter, without recourse to court proceedings.
11.6 Pre-action protocols may be prescribed in legislation or in court practice rules. For example, the UK Civil Procedure Rules require a prospective claimant in a personal injury proceeding to send a letter to a prospective defendant, containing a clear summary of the facts on which a prospective claim is based, along with a description of the nature of the injuries and the financial loss incurred. The prospective defendant is then required to send a reply within 21 days, and to ensure that a copy of the letter is sent to the insurer (if any is identified). The prospective defendant is then required to formulate a position on liability and send a reply to the prospective claimant within three months.
Advantages and disadvantages of pre-action protocols
11.7 Where they have been introduced, pre-action protocols have met some criticism. However, their potential to promote access to justice, efficiency, and promote cultural change has also gained currency.
Advantages of pre-action protocols
11.8 In many instances, pre-action protocols place obligations on parties to disclose relevant information and documents with the aim of facilitating settlement. Where no settlement is reached, the procedures aim to narrow the issues in dispute between the parties in a manner that expedites the trial process. In principle, this should assist in reducing the need for, and cost of, any subsequent discovery of documents.
11.9 Moreover, the simplification and standardisation of the claims process may offer consistency for litigants, and help to promote a culture of cooperation and settlement of cases at an earlier stage. In the context of pre-action protocols in construction disputes, Paula Gerber and Bevan Mailman note that:
Pre-action protocols represent a philosophical shift in the way litigation is commenced and conducted … towards a full consideration of alternative means of resolving differences. Pre-action protocols do this by forcing parties to fully investigate the merits of their claims and defences as a condition precedent to filing a law suit.
11.10 Many pre-action protocols also play an important role in encouraging parties to pursue ADR. Where ADR is successful, it results in cost savings both to individuals and to the public in terms of reduced burden on the courts. Alternatively, it has been argued that proper pre-action protocols should reduce the need for ADR.
Disadvantages of pre-action protocols
11.11 A major concern with pre-action protocols relates to the ‘front-loading’ of costs by requiring parties to spend more resources at an early stage of the process. For example, in complex cases where the parties are unlikely to reach early settlement, imposing onerous pre-action requirements may do no more than add to delay and costs for both parties in complying with the pre-action protocols.
11.12 Pre-action protocols also raise a number of access to justice issues, especially for individual litigants—that is, litigants who are natural persons. For example, individuals may not necessarily have the monetary resources to comply with relevant protocols, or may be pressured into settlement for fear of having adverse cost orders made against them for non-compliance with the protocols.
11.13 Additionally, pre-action protocols may open up a battlefield for ‘satellite litigation’, by way of interlocutory applications as to whether a party has or has not complied with the relevant protocol. This becomes more likely if parties risk adverse cost orders for not complying with the protocol, and has an obvious impact for courts and the judiciary, as well as adding to delay and the cost of litigation.
11.14 Finally, some have argued that pre-action protocols may be challenged on human rights grounds, if their effect is to impede an individual’s right of access to the courts.
 Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 103. See also Lord Woolf, Access to Justice: Final Report (1996), 110.
 Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 109; M Legg and D Boniface, ‘Pre-action Protocols in Australia’ (2010) 20 Journal of Judicial Administration 39, 39.
Civil Procedure Rules, Pre-action Protocol for Personal Injury Claims (UK), [2.7].
 Ibid, [2.6].
 Ibid, [2.7].
 See, eg, R Byron, ‘An Update on Dispute Resolution in England and Wales: Evolution or Revolution?’ (2001) 75 Tulane Law Review 1297, 1311.
 Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 109.
 P Gerber and B Mailman, ‘Construction Litigation: Can We Do It Better?’ (2005) 31 Monash University Law Review 237, 238.
 I Judge, ‘The Woolf Reforms after Nine Years: is Civil Litigation in the High Court Quicker and Cheaper?’ (Presentation at the Anglo-Australian Lawyers Society), 16 August 2007 <www.vicbar.com.au> at 25 October 2010.
 See M Legg and D Boniface, ‘Pre-action Protocols in Australia’ (2010) 20 Journal of Judicial Administration 39, 50.
 See, eg, Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 140–41 where a number of submissions are summarised making this point.
 M Legg and D Boniface, ‘Pre-action Protocols in Australia’ (2010) 20 Journal of Judicial Administration 39, 55; National Alternative Dispute Resolution Advisory Council (NADRAC), The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (2009), 31.
 See, eg, National Alternative Dispute Resolution Advisory Council (NADRAC), The Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (2009), 31.
 See Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 109–110. The VLRC Report identified that the implementation of pre-action protocols may be challenged on the basis that such protocols are a barrier to accessing the courts, and therefore incompatible with the right to ‘have the charge heard or proceeding decided … after a fair trial’ pursuant to s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). However, this concern was dismissed by the VLRC on the grounds that pre-action protocols: would not bar the commencement of proceedings; are triggered before the commencement of proceedings; and support the facilitation of a fair hearing.