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Pre-action protocols are just another set of legal hoops

Lord Woolf, you may remember, wanted to reduce the cost of litigation, and as such, swept away a 100 years of procedure and introduced the Civil Procedure Rules (CPR). Key cost-saving features of the CPR included a new test for pretrial disclosure of documents, the instruction by the parties of a single expert, and new stringent penalties, under Part 36, for failing to take up a good offer of settlement when one was made.

Another of his bright ideas was to introduce 'pre-action protocols', intended as a series of hoops through which the aspirant litigant would have to pass before being allowed to commence litigation proper. The underlying philosophy of these protocols was that the parties should put their cards on the table at the earliest opportunity, and that thereafter some attempt should be made to compromise the dispute with or without the assistance of formal alternative dispute resolution processes, such as mediation. Those of us who spend more time with formal dispute resolution have commented that the amount of work involved to satisfy the requirements of the protocols does not save costs. It merely loads the front end of litigation so that more work is carried out sooner.

Different types of action have different preaction requirements. The sort of cards held by parties to an action for personal injury are very different from those held by parties to a construction dispute. The personal injury pre-action protocol was introduced with the CPR.Later, a protocol for professional negligence claims was produced by Claims Against Professionals (CAP) and now a protocol for construction and engineering disputes has finally slipped off the press.

Interestingly this latest protocol also applies to professional negligence claims against architects, engineers and quantity surveyors. So now the lucky construction professionals have a choice of protocols to apply to their disputes.

All of these protocols define the path to litigation, with reference to letters of claim, acknowledgments and responses. The CAP protocol allows more time for these stages and includes a three-month period in which the professional may investigate the claim. The construction dispute protocol treats the exchange of correspondence more like pleadings, setting out claim, defence and counterclaim within a 28-day period.

Thereafter, the construction protocol provides for a pre-action meeting at which the parties, who may have been in dispute for all of a month, are invited to agree the following:

the main issues in their dispute and the root of their disagreement on each issue;

how these issues might be resolved without recourse to litigation and if litigation is unavoidable;

what steps can be taken to ensure that it is conducted in accordance with the overriding objective of the CPR, including whether a joint expert can be appointed, and if so, who it should be;

what documents should be disclosed; and how the litigation should be conducted generally.

My experience is that once parties have fallen out they tend not to be able to agree anything. If evidence were required for this proposition it is to be found in the fact that parties to an arbitration can seldom agree on the identity of an arbitrator - each side rejecting out of hand the other side's perfectly sensible suggestions - with the result that they are then obliged to accept a presidential appointment, whether they like him or her, or their terms and conditions, or not. Similarly, it is hard to imagine that disputing parties will readily be able to sit around a table within a few short weeks of the ball being set rolling, and happily agree that they should jointly instruct an expert of an agreed discipline, let alone of an agreed identity. Furthermore, one of the few things that I learned on mediation training is that to force warring parties to the table too early in the process can be counterproductive. (Or did the chap who acted out the angry claimant when I did my practice stint as mediator take his role too seriously? ) For the calculating, would-be litigant, who treats a dispute much like a glorified game of chess, these protocols will provide welcome new challenges, but for the rest of us the message is, life is just not like that.

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