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Section 5:
Pre-action protocols
Proposal 4
Steps should be taken, in cooperation with interested business, professional, consumer and
other groups, to develop pre-action protocols suitable to Hong Kong conditions with a view
to establishing standards of reasonable pre-action conduct in relation to specific types of
dispute.
Proposal 5
Rules should be adopted allowing the court to take into account the parties' pre-action
conduct when making case management and costs orders and to penalise unreasonable non-
compliance with pre-action protocol standards.
In most cases, there will have been some attempt at resolving the dispute between the
parties, with or without the help of lawyers, before court proceedings are issued.
Where the potential plaintiff does seek legal advice, one would expect his lawyers to
write a letter before action to the prospective defendant setting out the basis of the
complaint and what the claimant requires by way of satisfaction of that complaint.
Where the defendant does not accept the claim, one would expect a reasoned response
indicating why not. These are commonsense steps to be taken by parties to any
dispute so that legal proceedings might be avoided. Seeing that it rests on a sound
basis, the potential defendant may concede the claim. Conversely, seeing the
soundness of the response, a claimant may drop his claim. Or negotiations may
commence on the basis of the exchange and a compromise settlement arrived at.
However, as pointed out in the Interim Report, this process often does not take place
properly or at all, so that proceedings are launched without the matters in issue being
sufficiently identified or understood. Pre-action protocols, backed by costs and other
financial sanctions, were introduced by the Woolf reforms to try to compel the parties
to engage meaningfully in such pre-action dialogue in the hope of preventing ill-
conceived and unnecessary litigation.
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