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The main aims of pre-action protocols are to promote early settlement or, failing that,
to promote efficiency in the conduct of the proceedings. Such results can only be
achieved if the parties are required to exchange sufficiently detailed information about
the claim to form the basis of settlement and the marshalling and formulation of such
information inevitably requires costs to be incurred. There is no doubt that in England
and Wales, pre-action protocols have caused costs to be front-loaded.
(a)
The early evaluation of the Woolf reforms conducted by the LCD in March
2001, reported :-
"It is clear that the introduction of pre-action protocols has resulted in the front-loading of
costs before proceedings are issued."
(b)
This was repeated in its second evaluation published in August 2002,
which
went on to state that one motor insurance company's figures showed that :-
"...... in the three years prior to the introduction of the reforms costs had increased in line with
inflation with costs claimed rising at around 4% pa and costs paid at around 3%. From 1999
to 2001, however, claimed costs had risen by an average of 15% pa while costs paid had
increased by around 12%; substantially more than inflation."
(c)
In the Woolf Network's 3rd survey, some 45% of the respondents had thought
that front-loaded costs were a problem for the reforms. About two years later,
the 5th survey, conducted in December 2002, continued to acknowledge that
"front-loading is causing considerable problems."
(d)
Goriely, Moorhead and Adams, in their 2002 study, More Civil Justice
reported that pre-action protocols were generally well-received in personal
injury cases but that :-
"The new approach ...... did lead to some ‘front-loading', in which more work was carried out
in the early stages of a case. Claimant solicitors said they were now more likely to interview
their client before writing the first letter to the defendant, and that such interviews tended to
be longer. One potential problem is that it now takes longer to write the initial letter to the
defendant. Whereas before the reforms, half of all first letters were sent within a fortnight;
now half of letters took over a month, with around one in five taking over three
months. ......"
Notes
LCD-EF §7.3.
LCD-FF §7.9.
Ibid.
At p xiv.
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