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Litigation is the last resort. That was thrust of the new legal framework created by the Civil Procedure Rules 1998 when we had a decent civil legal aid scheme. Nothing has changed except for the virtual destruction of legal aid.

To help the parties reach an agreement, the CPR encourage an early exchange of information. The introduction of pre-action disclosure emphasises this. CPR 1.4(2), which defines active case management, encourages both cooperation and the use of alternative dispute resolution. And then there are the protocols.

The court's role is to treat the protocols as a reasonable approach to pre-action conduct and, where appropriate, impose sanctions for breach. There are few authorities on the topic but it is unlikely that a district judge's decision to strike out a claim for non-compliance with the personal injury protocol as being an abuse would be upheld on appeal.

For example, consider Jimaale v London Buses [2000] CLY 599 and contrast with Orange PCS v Hoare Lea [2008] EWHC 223 TCC, where in refusing a stay for non-compliance with the protocol for construction and engineering the court ruled that it was necessary to apply pragmatic and commercial reality and not slavishly apply rules and protocols if this undermined the overriding objective.

There are currently nine protocols and the General Practice Direction on Pre-action Conduct which was introduced as an overarching set of principles and to cover any situation where there was no case specific protocol. They have been the subject of a recent review by the Civil Justice Council to see whether there could or should be a consolidated protocol. It was decided, following consultation, that one size does not fit all. But what about protocol checklists?

Compliance and court discretion

The mortgage pre-action protocol came into force on 19 November 2008 and introduced the requirement for the claimant to produce a checklist. The purpose was to ensure protocol compliance. Unlike other claims, mortgage possession claims are listed for a hearing on issue. The claimant is required to produce a completed checklist at the hearing which explains the actions it has taken to comply with the protocol.

A copy is handed to the defendant or their representative before the hearing. Even if the defendant does not appear the court can still check the protocol has been complied with. Many local authorities have voluntarily adopted a similar procedure in rent arrears possession cases which have their own protocol.

If the claimant has complied with the mortgage possession protocol and the defendant has not, this may be reflected in how the court exercises such discretion as is available to it. And, if the claimant has failed to comply, while the court will not be persuaded to strike out the claim, it may well adjourn the hearing to enable compliance to belatedly take place and the claimant could be debarred from adding the costs thrown away to its security and condemned to pay the defendant's wasted costs.

Helping hand

During the course of the review the Civil Justice Council considered whether the use of checklists should be widened to all cases. Would the court be helped with a checklist and would this ensure compliance? It was recognised that in all CPR part 7 cases the allocation questionnaires provide very little detail. The parties are told: 'You are expected to comply with the relevant pre-action protocol. Have you done so? If no, explain why?'

Invariably the answer is 'yes' to the first question. The checklist used in mortgage and rent cases sets out all the steps required under the protocol and if replicated in other cases would prompt a detailed scrutiny of pre-issue conduct. The council has decided that checklists should be compulsory in all protocol cases.

Because protocol compliance lays the ground for the expeditious conduct of proceedings, the need for directions should be reduced by checklists. The working of the personal injury pre-action protocol gives a good example. This requires an early exchange of information; a 'cards on the table' approach. Specifically, under paragraph 2.13, early disclosure is required, and under paragraph 2.14 the joint selection of experts. Under paragraph 3.10, if liability is denied, material documents should be disclosed with the letter of reply.

The protocol provides a specimen non-exhaustive list of documents likely to be material. Under paragraph 3.14 the claimant should send a schedule of special damage with supporting documents. Paragraphs 3.15 to 3.21 deal with expert evidence.

I have pondered for some time when allocating and giving case management directions why, when it is asserted that the relevant protocol has been complied with, the vast majority of these directions have not been rendered redundant. I cannot recall receiving a draft order attached to the allocation questionnaires, whether agreed or not, where the parties spell out the steps taken, thereby obviating the need to order disclosure, exchange of expert reports, et al.

Still to come

Considerable work will be required to complete the array of checklists required but the principle that they are on their way is now established and they should be up and running before this year is out. The fact that the checklists will be open to scrutiny should increase protocol compliance.

The court will be able to see at least by the allocation stage if this is the case. Will it increase interlocutory applications which have all but disappeared since the CPR came into force? Perhaps, but given its importance I believe policing compliance would not be a bad thing.