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In the light of the foregoing considerations, the Working Party is of the view that :-
(a)
Pre-action protocols should not be prescribed for cases across the board,
whether by a general protocol or by a general practice direction on protocols.
(b)
It should be open to the courts operating existing as well as any additional
specialist lists, subject to the approval of the Chief Judge of the High Court and
after due consultation with regular users of those courts and any other interested
persons, to introduce suitable pre-action protocols, to be applied to cases
brought in those lists.
(c)
The decision to introduce pre-action protocols and determination of their
content would reflect the procedural autonomy allowed to such specialist lists.
However, when deciding upon the scope of the obligations which should be
imposed by such protocols, efforts should be made to minimise front-loaded
costs.
(d)
Rules should be introduced enabling the court, in its discretion, when exercising
any relevant power, to take into account a party's non-compliance with any
applicable pre-action protocol in accordance with the terms of the protocol in
question. The protocol ought to prescribe the range of consequences which
could follow from non-compliance, identifying the contexts in which the court
can be asked to take such non-compliance into account
and the sanctions that
a court might be asked to impose.
(e)
In exercising its discretion, the court should bear it in mind that special
allowances may have to be made in relation to unrepresented litigants if it
should be the case that without access to legal advice, they were unaware of any
applicable protocol obligations or, after becoming aware of them, that they were
unable properly to comply with them.
Notes
Discussed in Section 13.
Discussed further in Section 13.
Cf CPR 3.1(4); CPR 44.3(4) and (5).
Cf CPR 3.1(5), (6) and (6A); Practice Direction - Protocols §2.3.
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