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We all know that smoking is bad for us, yet many smokers delight in the paraphernalia of lighting a cigarette and the pleasure of the addiction, writes Kim Franklin. The government and the industry know that smoking is bad for us, but both depend upon the revenue produced by the sale and taxation of tobacco. The tension of trying to discourage smokers from doing something they are hell-bent on doing is addressed by those increasingly alarming notices mounted on cigarette packets. They have yet to announce 'you will die if you open this', but it won't be long.

Similarly everyone knows that litigation should be avoided like the plague. It is time-consuming and expensive.

There is no saying what will happen. The chances are that whatever you are expecting to get out of it, you will be disappointed. Nevertheless disputes proliferate, particularly where parties with diametrically opposed interests are required to co-operate to the same end. The construction industry is a good example; landlord and tenant - and marriage - are others. On the one hand there is an industry that depends upon the resolution of disputes for its livelihood: not just the lawyers, but the experts and consultants who advise them. On the other, the cost to the taxpayer of maintaining the court system is not inconsiderable.

The courts have responded to this dichotomy with various reforms intended to encourage those in dispute to reach an early settlement and avoid litigation. Such initiatives include the preaction protocols (AJ 15.06.06) that require putative parties to exchange information about their claims, and to meet to discuss them, before proceedings commence.

It seems, however, that this is not enough. The courts have now introduced a Practice Direction to the protocols, a sort of preprotocol protocol, which requires would-be litigants to actively consider mediation, or some other form of alternative dispute resolution, before proceeding. The Practice Direction states that litigation should be a last resort and only embarked upon after negotiation, early neutral evaluation or mediation have failed. It takes its lead from a recent disputed patent case, IDA Ltd v University of Southampton (Judgment 02.03.06), in which the appeal court judges warned that disputes can be 'protracted, very very expensive and emotionally draining'. On top of that, business can be 'stultified by the dead hand of unresolved litigation'. The Practice Direction gives the court an express power to find out what settlement steps were taken.

What if the parties, much like the smokers, ignore these warnings and remain intent upon slogging it out in the courts? At present, if proceedings are commenced, or costs incurred unnecessarily, the court can penalise the party at fault with a hefty costs order, or by reducing their damages.

But it will not be long before the 'dead hand of litigation' reaches out and stamps a warning across the court forms - if not exactly 'Litigation Kills', then something very like it.

Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.crownofficechambers. com

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