One for all

Ten pre-action protocols have come into force over the last nine years, prompting the Civil Justice Council in 2006 to embark on a protocol review and consider recommending a single, generic protocol. The idea was rejected by the stakeholders consulted, each wishing to retain their own protocol, so instead the council proposed the introduction of a 'Practice Direction '“ Pre-Action Conduct' to supplement Part 3 of the CPR 1998. This new practice direction (PD), which sets out what is expected of the parties pre-issue, is due to come into force on 6 April 2009.

The aims are clearly defined: early exchange of information, consideration of alternative dispute resolution and avoidance of litigation. The PD describes the conduct the court will normally expect of the prospective parties prior to the start of proceedings, and examples are given where the PD does not apply.

Part 4 of the PD deals with compliance. This set out the expectation that the parties will comply, details the court's approach to compliance and gives examples of, and sanctions for, non-compliance. The court, it says, will not be concerned with minor or technical shortcomings, but will consider the proportionality of any step and take account of any urgency.

Not prescriptive

Sanctions are no doubt the principal concern of practitioners. The sanctions are not prescriptive and the PD refers to the sanctions which the court may impose. The list is not exhaustive but comprises stay for compliance and/or costs and/or interest. Unlike the Rent pre-action protocol, there is no reference to strike-out for non-compliance.

The PD usefully contains an overview of the principles that apply pre-issue, as well as when there is a requirement to send a detailed letter of claim and the need for a detailed response. If there is a protocol, the timetable is set out within that protocol. If there is not, the defendant should give a full written response within a reasonable period. This period is not defined as it will depend on the circumstances. Helpfully, the PD also sets out guidance on a pre-action procedure where there is no protocol in Annex A and on debt claims in Annex B.

The pre-action guidance in Annex A reflects the simplified procedure in the rejected consolidated protocol. The procedure is: letter of claim and acknowledgment within 14 days followed by detailed response. The encouragement is to respond quickly. There then follows the suggestion of 'taking stock' and seeing if the issues have narrowed. Annex B usefully sets out some contact details for independent advice organisations. There is a recommendation to give the debtor time to take debt advice.

The PD encourages alternative dispute resolution in all cases and guidance is given. There are also details on instruction of experts, use of material disclosed, funding arrangements and what to do if a relevant limitation period is due to expire.

Re-examining the existing protocols

So what of all those protocols in existence? How do they look 10 years after the introduction of the CPR? Following the rejection of the proposed consolidation, the Civil Justice Council pre-action protocol committee is undertaking a consultation examining the existing protocols. Does there remain a need to spell out how to write a letter before action or how to instruct an expert? Should the protocols be drafted in the same way for ease of reference? As the PD contains overarching obligations and sanctions should these be replicated in the protocols? Is there a general need to update the protocols?

A decade after the introduction of the CPR, it is timely to look at the protocols again. It is hoped that the opportunity will be taken to update them, and reduce their length. The introduction of the PD will reduce the need for any more protocols, and there would have to be a compelling reason to introduce another one. Meanwhile, existing protocols should be complied with, failing which the court should be asked to intervene.

To assist the court in checking compliance, at present all the parties have to do is tick a box in the allocation questionnaire. This is unhelpful as it does not properly bring to the court's attention any failure to comply. Applications to stay the case for compliance are rarely seen. What has been recently adopted by many courts and practitioners in both rent and mortgage cases is a checklist, which is a simple and quick way of establishing compliance. The checklist sets out what steps should have been taken under the protocol and whether they have been taken or not. Courts are thereby able to focus on any breach. Perhaps it is time these were used in all cases.

What is clear is that this PD will focus attention on the need to comply and remind the parties of their obligation to do so. In Aegis v Inland Revenue [2005] EWHC1468 (Ch), where a judicial review application had been discontinued by the claimant, Mr Justice Park reduced the defendant's costs to reflect its failure to comply with the judicial review pre-action protocol. The consequences of a breach may not seem draconian but the court will be concerned to ensure compliance and, if properly brought to its attention, should not hesitate to do so.