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This trend was also highlighted by the APIL in their submission to the Working Party,
stating :-
"Anecdotal evidence from our members, however, suggests that there may have been a
‘honeymoon period'. Some members feel that whilst defendants initially complied with the
protocol's requirements, they now do so to a lesser extent. This concern has been reflected
by APIL president, Frances McCarthy, who has stated:
‘The protocols have transformed the way in which parties deal with each other before
litigation. The culture of openness which has been generated, together with the part
36 offer, has led to a dramatic increase in pre-issue settlements. But some insurers are
beginning to try and manipulate the protocols. We are receiving letters from insurers
in response to the letter of claim which ignore the basic premise that liability is
resolved before the issue of quantum falls to be decided. Where liability is
purportedly not in dispute, no unambiguous admission is made. Where liability is
denied, proper reasons are not given and/or documents in support of the denial are not
supplied. The claimant's statement is requested as of right. This behaviour is not
universal; many insurers behave perfectly properly, but a disquieting number seem to
focus on sliding out of their obligations. What is more worrying is that claimants'
lawyers are not always calling them to account.'"
It would appear that the party who could seek to enforce the protocol often does not
find it economic to do so partly because of uncertainty as to whether the court would
order any meaningful sanction for such non-compliance so as to justify the effort and
expense of attempting enforcement. This must be borne in mind when considering
whether and to what extent pre-action protocols should be introduced in this
jurisdiction. It would be particularly galling for a party who has conscientiously
observed the protocol and met with non-compliance on the other side to be advised or
to discover that it is not worthwhile trying to enforce compliance. Such a situation
would undermine the protocol system's credibility. These concerns suggest that pre-
action protocols should only be introduced in specialist lists where there is active
support for the system by the court and court-users so that enforcement and effective
sanctions are likely.
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