Facilitating the Early Resolution of Disputes without Litigation

The existing protocols incorporate different guidelines and different time frames for responses, etc.Some include full precedents, such as letters of claim, letters of response and letters of instruction tomedical experts (eg, the personal injuries protocol). Others use templates (eg, the clinical negligenceprotocol) or simply provide general guidance (eg, the judicial review protocol).These protocols have become quite lengthy and detailed. In some ways they constitute their ownprocedural code. They set out the steps that must be taken, a timetable and, instead of forms, a seriesof draft documents that can be adapted to meet the circumstances of the claim.For cases not covered by a protocol, the Practice Direction sets out detailed steps which each ofthe parties to the dispute is expected to take. These are summarised below. At present the PracticeDirection is under review and a revised draft has been circulated by the Civil Justice Council forcomment. In the draft, arbitration has been added to the list of alternative dispute resolution options.Also, there is a more explicit statement that parties are expected to make continual efforts to settle,both before a case is commenced and during proceedings.The pre-action protocols are not intended to be exhaustive but prospective parties are required tosubstantially comply with approved protocols. 29 Noncompliance can result in cost orders and/orinterest penalties.In England and Wales the Civil Procedure Rules enable the court to take into account compliance ornoncompliance with an applicable pre-action protocol when giving directions for the management ofproceedings 30 and when making orders for costs. 31The Practice Direction relating to pre-action protocols provides that if the court is of the opinionthat noncompliance has led to the commencement of proceedings which might otherwise not beencommenced, or has led to costs being incurred that might otherwise not have been incurred, theorders the court may make include:(1) an order that the party at fault pay the costs of the proceedings, or part of those costs, ofthe other party or parties;(2) an order that the party at fault pay those costs on an indemnity basis;(3) if the party at fault is a claimant in whose favour an order for the payment of damages orsome specified sum is subsequently made, an order depriving that party of interest on suchsum and in respect of such period as may be specified, and/or awarding interest at a lowerrate than that at which interest would otherwise have been awarded;(4) if the party at fault is a defendant and an order for the payment of damages or someother specified sum is subsequently made in favour of the claimant, an order awardinginterest on such sum and in respect of such period as may be specified at a higher rate,not exceeding 10% above base rate (cf. CPR rule 36.21(2)), than the rate at which interestwould otherwise have been awarded. 32The Practice Direction further provides that the court will exercise its powers under paragraphs 2.1and 2.3 with the object of placing the innocent party in no worse position than that party would havebeen in if the protocol had been complied with. 33The Practice Direction specifies various circumstances where either a claimant or a defendant may befound to have failed to comply with the protocol. For claimants, this may be supplying insufficientinformation to the defendant or not following the procedure required by the protocol. 34 Fordefendants, this may be failing to respond to the letter of claim within the time period specified in theprotocol, not making a full response within the specified time, or not disclosing documents required tobe disclosed by the protocol. 35The court is not likely to be concerned with ‘minor infringements’ of the practice direction or protocolsand is likely to look at the effect of noncompliance on the other party in determining whether toimpose sanctions. 36Where a party to a dispute or potential dispute fails to consider whether some other form ofalternative dispute resolution (ADR) would be more suitable than litigation or fails to endeavour toagree on which form of ADR to adopt, the court will take this into account when determining costs. 37Compliance or noncompliance with a relevant pre-action protocol will be taken into account by acourt only where the claim was started after the protocol came into effect. 38 Where a claim is started23 Department for ConstitutionalAffairs, Practice Direction: Protocols(2006) [1.4] at3 December 2007.24 Lord Woolf (1996), above n 19, ch 10[13].25 Each of the protocols is available onlineon the Department for ConstitutionalAffairs website: at 3 December 2007.26 Ministry of Justice [UK], Pre-ActionProtocol for the Resolution of ClinicalDisputes (1999) [3.4]–[3.5] at 3December 2007.27 ibid at [3.4(v)].28 Tamara Goriely, Richard Moorhead andPamela Abrams, More Civil Justice?The impact of the Woolf reforms onpre-action behaviour, Research Study43, The Law Society & the Civil JusticeCouncil (2002) 221–2.29 Ministry of Justice [UK], PracticeDirection—Protocols (2006) [2.2] at 26 November2007.30 Civil Procedure Rules 1998 (SI1998/3132) rr 3.1(4)–(5), 3.9(e).31 Civil Procedure Rules 1998 (SI1998/3132) r 44.3 (5)(a). See also r36.10 in relation to pre-action offers ofcompromise.32 Ministry of Justice [UK] (2006), above n29, [2.3].33 ibid, [2.4].34 ibid, [3.1].35 ibid, [3.2].36 ibid, [3.4].37 ibid, [4.7].38 ibid, [5.2].113