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The introduction of pre-action protocols has reduced the number of actions launched and led to reduction in civil business

The pre-action protocols were first introduced in April 1999, to implement some of the recommendations of Lord Woolf as set out in his report on Access to Justice. In this report, Lord Woolf advocated that codes of practice for pre-action conduct were necessary, for various common types of dispute which were often of low value, but frequently litigated. He said that such codes of practice "are intended to build on and increase the benefits of early but well informed settlements which genuinely satisfy both parties to disputes".

He recommended a system which would enable parties to a dispute to embark on "meaningful negotiations" as soon as the possibility of litigation was identified. To facilitate "meaningful negotiations", parties must have all relevant information to define their claims. Without such information, the parties would be unable to properly value their claims.

The purposes of the protocol are:

1. to focus the attention of the parties on resolving disputes without litigation;
2. to enable the parties to obtain information required to negotiate an appropriate settlement;
3. to allow parties to make offers, which will have costs consequences if litigation ensues
4. to lay the ground for expeditious conduct of proceedings where litigation is necessary.

The first protocols introduced were the personal injury protocol, and housing disrepair protocol. There now exists in addition,
A pre-action protocol for resolution of clinical disputes;
A protocol for obtaining hospital medical records;
a pre-action protocol for construction and engineering disputes;
a pre-action protocol for defamation;
a professional negligence pre-action protocol;
a pre-action protocol for judicial review;
a pre-action protocol for disease and illness claims

There are several areas not covered by the protocols. A significant area is contract disputes. The Lord Chancellors Department drafted a general protocol for use in all cases to which no specific protocol applies, and issued a consultation paper in October 2001. Unfortunately, following consultation, it was concluded that any attempt to formulate such an all encompassing protocol was not workable. However, the Practice Direction on protocols requires parties to comply with the "general spirit of the protocols" whatever the subject of the claim.

The requirements of the Protocols

The primary requirement of each of the protocols is to require every claimant to write to the defendant and set out the detail of the claim in an initial letter. They require the parties to make plain what they are claiming, and to make sure that both sides have the necessary date required to form a realistic appraisal of the claim. A three month period is then provided to allow the defendant to investigate the claim, and to allow time for negotiations to ensue.

The success of the Protocols

The findings of the DCA's Civil Justice Reform Evaluation confirms that, in 2002, there was evidence of an overall drop in the number of claims issued in the types of claim most affected by the new civil procedure rules, and that the evidence suggests that pre-action protocols are "working well to promote settlement and a culture of openness and co-operation".

Data from the Court Service at December 2001 shows that there was a peak early in 1999 of claims issued. There was then a gradual decline towards the end of 1999. Since 1999, the number of county court claims issued in the county court has reduced by approximately 25%, and the number of high court claims reduced by as much as 80%. The massive difference between the percentage fall in the high court and county court is primarily due to the amendment to the High Court and County Courts Jurisdiction Order which came into force on 26th April 1999. This provided that proceedings may not be started in the high court unless the value of the claim is more than £15,000. This has resulted in a very large number of claims that would have, prior to April 1999, been issued in the high court, being issued in the county court.

When combining data from the high court and county court, there has been, since mid 2000, an overall drop of approximately 25% of claims issued from 1999.

An article published in October 2001 reported on a survey of 100 users of the Clinical Negligence protocol conducted by the Clinical Disputes Forum. Suzanne Burn wrote that the responses "indicated particularly that defendants are carrying out better and earlier investigations, there is more co-operative behavior, the protocol provides better opportunities for pre-action settlement, and the statements of case are more focused when litigation is necessary."

In 2001, the Law Society and Civil Justice Council jointly commissioned research into the impact of the Woolf reforms on pre-action behavior. The final report was published on 25th April 2002. The report found that 90% of cases settled for less than £7,000, with a massive 85% settling without recourse to the courts. The report also indicated that most practitioners regarded the reforms as a success, and found that they provided a clearer structure, with greater openness, making settlements easier to achieve.

Following the report, Lord Phillips, Master of the Rolls, said "the Woolf reforms, in this area, have been a success, not an unqualified success, they have not resulted in a reduction of costs, as far as one can see, but they have been very successful in other areas.".

Conclusion

The pre-action protocols have met with a welcomed response from litigators, and have caused a significant reduction, of approximately 25%, of the number of cases litigated each year. Lightman's comment that "The introduction of pre-action protocols has reduced the number of actions launched and led to reduction in civil business" is therefore an accurate statement.

Bibliography

The High Court and County Courts Jurisdiction (Amendment) Order 1999 (SI 1999 No 1014)
Access to Justice - Final Report by the Right Honourable the Lord Woolf, Master of the Rolls, July 1996
Department for Constitutional Affairs - Civil Justice Reform Evaluation - Further Findings, August 2002, www.dca.gov.uk/civil/reform/ffreform.htm
More Civil Justice? The impact of the Woolf Reforms on pre-action behaviour 25th April 2002 www.lawsociety.org.uk
Pre-action protocols under the CPR: Legal Action October 2001
"The Civil Justice System and the Legal Profession - the Challenges Ahead", Lightman 2003
Civil Procedure - The White Book Service 2005, Thomson Sweet & Maxwell

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