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It must accordingly be recognized that if pre-action protocols are adopted in Hong
Kong this is likely to lead to a front-loading of costs in the cases to which they apply.
Protocols should therefore only be adopted where such front-loading is considered
justifiable in that the benefits of early settlement resulting from the protocol are likely
to outweigh the disadvantages of such front-loading.
One must therefore conclude at once that pre-action protocols should not be applied
across the board since (as the Interim Report showed) some 60% of all ordinary High
Court Actions go by default (where pre-action protocols would be an unnecessary
burden).
In contrast, the default judgment rate in Commercial Actions and
Construction and Arbitration List proceedings is considerably lower. This lends
support to the view that pre-action protocols may have a larger role to play in relation
to cases in specialist lists than elsewhere.
Another consideration relevant to the possible introduction of pre-action protocols
concerns their enforcement. It has recently been reported in England and Wales that
non-compliance with pre-action protocols, particularly by insurance companies in
personal injury cases, is on the increase and that sanctions against non-compliance are
not being enforced.
For example, two responses to the Woolf Network's 5th survey
were summarised as follows :-
"There is no clear and effective sanction for breach of the Protocol. Many defendants often
disregard the Protocols, and they are not really ‘punished' consistently by the courts. There is
widespread disregard of the Personal Injury Protocol by Defendants and insurers."
"Despite the protocol, insurance companies are very poor at providing essential
documentation (wage details and accident reports). Medical reports obtained by insurance
companies are always late in being served. The disclosure form for simple actions is far too
complex. An improvement would be that prior to disclosure, any party should be able to
request the other to include specified documentation in their list or state they do not have it."
Notes
More Civil Justice at p vi.
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