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K1.2. The idea behind pre-action protocols
| 259. | In Lord Woolf's Final Report, he proposes the introduction of pre-action protocols (Note 198) "to build on and increase the benefits of early but well-informed settlements which genuinely satisfy both parties to a dispute." (Note 199) This is something of a new departure since it involves the court assuming a degree of control (albeit ex post facto) over the parties' conduct which occurs before the start of the proceedings and so before the court's jurisdiction is invoked. |
| 260. | The idea is to develop codes of practice (pre-action protocols) on how disputes should reasonably be handled before taking the step of instituting proceedings and, if action is commenced, to penalise in costs and other disincentives, parties who had unreasonably failed to observe the protocol. |
| 261. | Such protocols are intended to be developed in specific areas of practice and drawn up with the active cooperation and agreement of business, professional, consumer and other groups interested in litigation in that area. Pre-action protocols are intended :- |
| "(a) | to focus the attention of litigants on the desirability of resolving disputes without litigation; | |
| (b) | to enable them to obtain the information they reasonably need in order to enter into an appropriate settlement; or | |
| (c) | to make an appropriate offer (of a kind which can have costs consequences if litigation ensues); and | |
| (d) | if a pre-action settlement is not achievable, to lay the ground for expeditious conduct of proceedings." (Note 200) |
Notes
| 198 | Defined in the CPR's Glossary as: "Statements of understanding between legal practitioners and others about pre-action practice and which are approved by a relevant practice direction." <back> |
| 199 | WFR, p 107, ยง1. <back> |
| 200 | Ibid. <back> |
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