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(b)
Pre-action protocols and specialist lists
One particular area where specialist lists may profitably exercise procedural autonomy
is in respect of the adoption of pre-action protocols. As discussed previously,
the
Working Party has decided against recommending the introduction of pre-action
protocols generally. However, in the light of the responses received, there is much to
recommend permitting such protocols to be introduced where and to the extent that
this is thought appropriate in specialist lists, in consultation with users of those lists.
Many respondents to the consultation favoured having pre-action protocols for
specified kinds of cases.
Inevitably, there is room for debate as to where and to
what extent such protocols should be introduced. Thus, the Bar Association suggested
that the problem of front-loaded costs may be less acute in the personal injury context
since the majority of the parties are likely to be either legally-aided or insured.
However, the BSCPI expressed reservations regarding the pre-action requirements of
PD 18.1 in Personal Injury List cases, questioning its effectiveness and worrying about
front-loaded costs. On the other hand, the LAD, the High Court and District Court
masters, the HKFI as well as a firm of solicitors all reported that those provisions of
PD 18.1 were generally working well. The Hospital Authority and the LAD went on
to argue in favour of introducing a pre-action protocol along the lines of the clinical
negligence protocol in force in England and Wales, with suitable adaptations for Hong
Kong.
There was also strong support from the Society of Construction Law Hong Kong and a
firm of solicitors for the introduction of a pre-action protocol in relation to at least
some, if not all, construction and engineering cases in Hong Kong.
Notes
Section 5 above.
They included the Bar Association, the Law Society, the LAD, the HA, the DOJ, the APAA, the
SCLHK, the HKRRLS, three firms of solicitors and the High Court and District Court masters.
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