The preaction protocol was one of Lord Woolf's big ideas, conceived as part of his overhaul of the civil procedure rules (CPR), writes Kim Franklin. The subplot to the reforms was the intended reduction in the cost of litigation. The idea was a simple one. Before embarking upon construction litigation the claimant would set out its claim in a letter, the defendant would write a response, and the parties would be obliged to meet to see whether they could resolve the matter, or at least reduce the scope of the dispute before commencing proceedings.
Those adopting the oldfashioned gung-ho approach to litigation - shouting 'I'll see you in court' as the ink dried on the writ, would be sanctioned by the judge when assessing their costs, even if they were successful.
The protocol is great if it works. But if the preaction exchanges do not result in a settlement it is much to be doubted whether it saves any costs at all. Consider the following:
the costs incurred in complying with the protocol are not recoverable. If no settlement is achieved using this method, the parties are required to rehearse the whole claim-and-defence thing again in formal proceedings, duplicating the time, effort and cost involved;
while not encouraged, there is little to stop the parties adopting very different approaches to the protocol and the real claim. Extravagant protocol claims and unarguable defences are unceremoniously dropped when proceedings are issued;
by definition the protocol does not have the impact of a claim form. It plays into the hands of the reluctant defendant, who may treat the protocol as an opportunity for more posturing, waiting until proceedings are issued before taking the matter seriously; and the tight timescales for exchange of information can be extended. Six months down the line the parties can be little better informed and considerably poorer before they are in a position to refer their dispute to the courts.
Little wonder, therefore, that experienced litigators have taken to exchanging draft proceedings for protocol purposes so that they are in a position to issue immediately if the process fails.
Another problem with the protocol was identified in the case of Alfred McAlpine Capital Projects v SIAC Construction (19.12.05). Unfortunate parties who are joined into proceedings once they are under way are denied the luxury of the protocol enjoyed by the claimant and defendant.
The claimant's main contractor and defendant subcontractor had slogged through the protocol during the summer of 2005, but it was not until proceedings were issued that the defendants announced that they wanted to join the architects and engineers into the action.
Should the action be stayed to allow the professionals to play catch-up or should it proceed without further delay? Mr Justice Jackson acknowledged that there was no simple formula to resolve the conict. He concluded that as it was unlikely that the protocol would have achieved anything, the action should not be held up. This is further evidence, perhaps, that the protocol can be an unnecessary waste of time.
Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.