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K1.4. Experience of the pre-action protocols
| 270. | As discussed in section H2.1 above, pre-action protocols have been criticised for increasing costs in relation to those cases which settle shortly after commencement of proceedings. Comments have also been made that in some cases, the protocols have generated unwelcome solicitors' correspondence of a self-serving character purporting to show an adherence to the protocols and the overriding objective, a phenomenon which in itself increases unproductive costs. (Note 209) |
| 271. | However, it is also clear that the protocols have led to a significant number of cases never being started - which is one of their purposes. As pointed out above, lawyers acting for insurance companies have welcomed pre-action protocols notwithstanding their front-end loading of costs since the greater information made available allows insurers to make an informed assessment as to whether to incur investigation costs and whether to engage in legal proceedings. This has apparently resulted in a substantial reduction in the number of new proceedings being issued. (Note 210) This conclusion accords with the findings reported by The Lord Chancellor's Department. (Note 211) |
| 272. | In Hong Kong, the figures in Appendix B (Note 212) suggest that a significant front-end loading of costs occurs in any event, with large bills issued in respect of cases concluding on a default judgment. It is questionable whether complying with pre-action protocols would further increase such pre-action costs. |
| 273. | Moreover, as previously argued, in cases that do not in any event settle shortly after the start of proceedings, front-end loaded costs incurred in complying with pre-action protocols are likely to be money well spent, leading to more sharply defined issues and enabling the case to be more efficiently dealt with. |
| 274. | During his visit to Hong Kong in April 2000, Lord Woolf pointed to indications that pre-action protocols were having the desirable effect of modifying institutional conduct aimed at meeting the standards set by the protocols. Some healthcare givers were, for instance, re-organizing their systems of record keeping and retrieval to make it easier to respond to protocol letters. |
| 275. | Readers are asked for their views as to whether steps should be taken to develop pre-action protocols and supporting procedural rules in Hong Kong: Proposals 4 and 5. |
Notes
| 209 | Harry Anderson, of Herbert Smith, London, at a Sweet & Maxwell Asia Conference, "Civil Procedure: Latest Developments and Prospects of Change" Hong Kong on 8 June 2001. <back> |
| 210 | Geoffrey Reed, "Review of the Civil Procedure Rules from the Perspective of a Defendant Personal Injury Lawyer" [2000] JPIL 13 at 14. <back> |
| 211 | EF, ยง3.15. Research on the impact of pre-action protocols has been commissioned. <back> |
| 212 | Tables 7, 8 and 11 to 14. <back> |
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