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. |
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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. |
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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 :- |
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"(a) |
to focus the attention
of litigants on the desirability of resolving disputes without litigation; |
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(b) |
to enable them to
obtain the information they reasonably need in order to enter into an appropriate
settlement; or |
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(c) |
to make an appropriate
offer (of a kind which can have costs consequences if litigation ensues); and |
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(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."
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199 |
WFR, p 107, ยง1.
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200 |
Ibid. <back> |
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