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5.6
The Working Party's recommendations
In the light of the foregoing discussion, the Working Party makes the following
recommendations.
Recommendation 5: 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.
Recommendation 6: 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 all relevant persons, to introduce
suitable pre-action protocols to be applied to cases brought in those lists.
Recommendation 7: Rules should be introduced enabling the court when
exercising any relevant power, in its discretion, 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.
Recommendation 8: 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 is the case that, not having access to legal advice, they were
unaware of any applicable protocol obligations or, if aware of them, that they
were unable fully to comply with them without legal assistance.
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