Death of the Stone Age and Dawn of the Protocol

by Richard Tymkiw on July 22, 2016

Richard Tymkiw

With the advent of the Civil Procedure Rules (in 1999) old style approaches to disputes and claims were cast into the Neolithic and heralded a new dawn for dispute resolution.

Woolly mammoths of disputes could no longer be rendered safe by the flint-tipped spears of aggressive litigation.

Rather (and for the past 15 years) the emphasis has been upon steps and procedures to tame and nullify the beast.

What is a Preaction Protocol?

It is a means by which the parties and their legal advisers are encouraged to try and settle their claims before the start of Court proceedings (or unhappily, where those proceedings have begun at least to assist the Court in ensuring that the case is efficiently run).

How might this be achieved?

At heart is the need for all parties to engage in the exchange of early information, including production of all relevant documents and evidence.

What happens in practice?

In summary the party claiming recompense (the Claimant) must serve a formal Letter of Claim.  This must contain as much information as possible to do with their case and if need be append relevant documents upon which that party needs to rely (for example a contract, invoices or relevant correspondence which supports the party’s claim).

The recipient (the Respondent) in turn is allowed the opportunity to respond: this is known as the Letter of Answer.

If that response raises fresh or new questions then the Claimant is normally allowed an opportunity to put in a Letter of Reply.

Through such correspondence the parties should arrive at a position where each is aware of the case that they have to meet and then attempt a broadly informed assessment of strengths and weaknesses on either side.

Such an assessment is likely to inform the timing and content of negotiations to try and settle matters before they go to Court.

Even if say fault or liability is conceded there may be other disputes (over perhaps the amount of compensation claimed); even so, litigation is not the immediate answer.

Rather the parties must properly look to try and resolve their differences through the employment of Alternative Dispute Resolution (ADR). such as without prejudice negotiations, meetings face-to-face and possible mediation or arbitration.

Going to Court is now viewed as a step of last resort.

What if I choose not to adopt a Protocol or follow ADR?

The Courts will take a close and hard look as to how the parties were conducting themselves in the period leading to litigation.

What might amount to non-compliance?

The Court may conclude that a party has failed to comply with Preaction Protocol conduct where they have:

  • failed to provide sufficient information to enable the other party to understand the real questions in the case;
  • not acted within either reasonable or mandatory time limits;
  • unreasonably refused to consider and pursue ADR; or
  • for no good reason have failed to disclose documents requested.

How might the Court deal with non-compliance?

Should the Court decide that one party is in breach a range of options lay open including:

  • stay : that is putting the litigation on ice until the proper steps have been taken to implement a Protocol or pursue ADR;
  • costs sanctions;
  • punishing parties by depriving them of interest which might have accrued on a potential award; or
  • the award of punitive rates of interest in addition.

Do certain kinds of disputes have a particular Protocol?

The answer is yes.

There are currently eleven types of disputes to which fixed Protocols apply, including (for example):

  • Personal Injury
  • Clinical Disputes
  • Professional Negligence
  • Housing Disrepair
  • Possession Claims (based upon either rent arrears or mortgage arrears)
  • Dilapidations (affecting commercial property).

However if no mandatory Protocol exists a cautious client allied with the prudent practitioner will take care to ensure that one is formulated and adopted.

This Article cannot wholly do justice to the underlying complexities and strategic benefits attendant upon the imaginative deployment of a Protocol.

What about the costs?

It is impossible to be prescriptive.

A word of warning, however : the prosecution of a Protocol claim can result in an appreciable stratum of expense.

Care must be taken to see whether and to what extent all or at least part of that expense might be recoverable as part of any settlement.

Accordingly it is essential to examine – if looking at compromise – the feasibility of a condition requiring your opponent to make a financial contribution toward the costs of your successful Protocol claim.

If in turn there is a dispute over the level of that costs award it is open to the parties to agree for these to be decided by the Court under a separate process known as detailed assessment of costs.

The early deployment of a Protocol – allied with imaginative strategies which emphasise commercial resolution – are much to be preferred to the time, stress and expense of Neolithic litigation.

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