One of the objects of the Civil Procedure Rules (CPR) is to make litigation more collaborative.
Yes, I know, it's a funny idea - collaborative litigation - it's a bit like collaborative Scrabble. 'If I put my low-scoring word down here, you can use it to put your 'phoenix' on the triple word-score.'
Or collaborative football: 'We'll just move our goalkeeper out of the way for a bit and see what your strikers can do.'
But there is no doubt that the Pre-Action Protocols devised by Lord Woolf and his team are there to encourage the would-be claimant to give the defendant full notice of the claim. This will to allow the defendant the opportunity to investigate it, to respond and then to bring both parties to the table, so that they can discuss the dispute and agree the best way of resolving it - single joint expert perhaps, or maybe mediation.
Litigation is to be turned to only as a last resort.
There is a sub-plot of course, and the cost conscious amongst you have probably spotted that all this writing and meeting can be carried out by the parties quite happily without the legal profession.
However, Lord Woolf 's schemes were devised in something of a reality vacuum. The upshot of the protocol is that a considerable amount of work has to be done by the parties, usually in conjunction with their lawyers, before a formal dispute resolution process is embarked upon. The net result is not that the costs of litigation are saved, but rather that they are front-end loaded.When asked how they are responding to the demands of the new regime, solicitors will say: 'Oh, we are getting the hang of it. All these investigations have to be carried out before the letter of claim is sent out. Then there is a wait of about three months before the defendants come back to us. Then we suggest a meeting. By then it is usually too late, but we have one anyway because that's what the protocol requires.But they don't like it.'
'Who doesn't like it?'
'The clients don't like it.'
Ah, the clients.Of course Lord Woolf also reckoned without the human condition. By the time they have resolved to consult their lawyers, the clients want justice - fast. They want to sue the bastards. 'I'll see you in court' is the cry. There is nothing collaborative about litigation.
And even if you do not represent the angels in their claim against the commercial equivalent of Satan, there is something frustrating about going through the protocol hoops after the relative merits of the dispute have been aired - exhaustively in protracted correspondence - and it is perfectly clear to everyone that nothing will be achieved until that claim form is issued.
But to those wannabe litigants - chomping at the bit to sue and asking belligerently, 'Do we really have to?'when the protocol steps are rehearsed - a small word of warning.This has come from the case of Paul Thomas Construction Limited v Hyland and Power (2000).
In this case, the claimant builders submitted their final account to the defendant householders.
The defendants repeatedly asked for a breakdown of the account and eventually retained a quantity surveyor to assist them.
The claimants rejected the quantity surveyor's involvement on the grounds that he was not qualified. They resisted any suggestion that an adjudicator be appointed unless the defendants bore the cost of the exercise. They dismissed the defendants' requests for information as 'pettifogging'.
They wanted to be paid. They claimed an interim payment of £42,000 against their claim for £76,000. If they weren't paid by 12 noon on Friday, they threatened to commence proceedings without further notice. The claimants were reminded of the requirements of the CPR but ignored them.
The judge described their approach as 'extremely heavy-handed' and being at odds with the ethos of the CPR. The judge concluded that the claimant's behaviour was unreasonable and that (as a final condemnation), they had been uncooperative. The claimant's application for summary judgment had failed and the judge marked his disapproval by ordering the claimants to pay the defendants' costs assessed on the higher indemnity basis. Impatient claimants take note.