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In England and Wales, pre-action protocols have been introduced with a view to
encouraging reasonable pre-action behaviour by the parties and to promoting
settlement of the dispute without resort to litigation. The protocols prescribe the
exchange of information about claims and defences according to a timetable before
proceedings are issued; enabling the parties to negotiate on a properly-informed basis
and with the court given power to penalise non-compliance by way of costs and other
orders.
While the potential benefits of such an approach are recognized, many consultees
expressed concern that the imposition of pre-action protocol obligations would lead to
a front-end loading of costs, and so make litigation more expensive. The experience
in England and Wales also raises questions as to the extent to which enforcing
compliance with pre-action protocols is practicable.
In the light of these considerations, the Working Party recommends that :-
(a)
Pre-action protocols should not be prescribed for cases across the board. But
they might usefully be adopted in some specialist lists, subject to the approval
of the Chief Judge of the High Court and after due consultation with regular
court users and any other interested persons.
(b)
When deciding upon the scope of the obligations imposed by any such
protocols, efforts should be made to minimise front-loaded costs.
(c)
Any protocol adopted ought to prescribe the range of consequences which may
follow from non-compliance, identifying the contexts in which non-compliance
may be taken into account and the sanctions that a court might be asked to
impose.
(d)
Special allowances may have to be made in relation to unrepresented litigants in
this context.
To promote settlement without resort to litigation, "costs-only proceedings" should be
introduced enabling parties who have reached settlement on the substantive dispute
but who cannot agree on costs to have the relevant costs taxed by the master.
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