Annexes
This consultation paper seeks views on proposals for the introduction of a General Pre-action Protocol. The consultation is aimed at all individuals and groups who have an interest in trying to resolve disputes outside a court forum in England and Wales. This consultation is being conducted in line with the Code of Practice on Written Consultation issued by the Cabinet Office. It falls within the scope of the Code. The Code criteria have been followed and can be found at the end of this document (Annex F).
The initial impact assessment indicates that benefits will be achieved by all groups and organisations that use the General Protocol. The proposals are likely to lead to savings for businesses, the not for profit sector and litigants in person. A partial Regulatory Impact Assessment (RIA) is at Annex D.
Copies of the consultation paper are being sent to:
amongst others.
Please send your response by 31 January 2002 to:
Bridget Doherty
Lord Chancellor's Department
Civil Landscape Branch
3rd Floor
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 020 7210 8769
Fax: 0870 739 4177
E-mail: Bridget Doherty
Representative groups are asked to give a summary of the people and organisations they represent when they respond.
Statistical information on how many cases achieve an out of court settlement pre-litigation is very limited. We would particularly welcome any such information to help inform further policy development.
The Department may wish to publish responses to this consultation document in due course. Please ensure your response is marked clearly if you wish your response or name to be kept confidential. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.
Further copies of this consultation paper can be obtained from Bridget Doherty at the above address or telephone number.
When I announced the Civil Justice Reforms in April 1999 I aimed to reduce costs and delay in civil proceedings. Lord Woolf considered that one way of achieving this primary aim was to introduce Pre-action Protocols.
Pre-action Protocols are designed to promote dispute resolution between parties on an equal footing, at reasonable cost, speedily and in an easy and understandable way, with or without legal representation.
There are currently five approved Protocols in place: Clinical Disputes; Personal Injury; Defamation; Construction and Engineering Disputes; and Professional Negligence. These Protocols were developed due to the enormous effort made by the respective working groups, with officials from my Department acting as facilitators.
Handling disputes can be bewildering and complex, especially to those individuals who choose to act in person. A proliferation of Protocols could therefore cause a great deal of confusion and, as the Reforms aim to provide access to justice for all, it is now considered desirable to have a General Protocol potentially applicable to a range of disputes not covered by specific Protocols.
The proposal represents a continuation of the Lord Chancellor's programme of Civil Justice Reforms which aim to reduce cost and delay in civil proceedings. In pursuit of this aim Protocols give parties the tools to resolve disputes by helping them to reach an amicable settlement outside court. If Protocols have been followed but the dispute cannot be resolved, proceedings are simplified and streamlined if they do come to court.
The General Protocol maybe used in cases where an approved Protocol does not exist. There are at present five approved Protocols: Clinical Disputes; Personal Injury; Defamation; Construction and Engineering Disputes; and Professional Negligence. As well as these five Protocols there are other Pre-action Protocols in development by various working groups. Once the General Protocol is in place some of these may become unnecessary.
Background
In October 1997 the Lord Chancellor announced that he had decided to introduce a programme of reforms for the civil courts. These reforms were based on Lord Woolf's report on "Access to Justice" published in 1996.
The Government White Paper "Modernising Justice" published in 1998 set out proposals to reform the jurisdiction and procedures of the civil courts. The reforms were designed to eliminate unnecessary costs, delay and complexity; and to ensure that cases were dealt with at a cost which was proportionate to the value and importance of the issues at stake. The new procedures provide greater certainty about how long the litigation process will take, and what it will cost, so that people can take better informed decisions about whether to proceed. These changes are an important part of the Government's programme to develop a justice system which is more accessible and commands people's confidence as fair, efficient and user friendly.
The main changes, which were introduced on 26th April 1999, represented the start of an unprecedented modernisation affecting every part of the civil justice system. The Civil Justice Council was set up to monitor the progress of the reforms and advise the Lord Chancellor on issues arising in the course of the reform programme.
Amongst the reforms are Pre-action Protocols. Pre-action Protocols were conceived by Lord Woolf to set standards and timetables for the conduct of cases before court proceedings are issued. They require the exchange of information and investigation of claims at an early stage. Those in dispute will therefore be in a better position to make a realistic assessment of the merits of any case far earlier than previously. This enables them to settle disputes without recourse to litigation. Where litigation is unavoidable, cases coming before the court will be better prepared. Judges are able to consider how far litigants have followed the Protocols and are able to impose sanctions on those who breach them.
Lord Woolf recognised that most claims are settled without starting proceedings and that the vast majority of cases that come to court settle without trial through negotiation between the parties or their legal advisers. He also recognised that every case is different and that it is often impossible to come up with a procedure that will cover everything which will not be too long or cumbersome for litigants. His recommendations for Protocols therefore concentrate on areas which tend to be contentious: exchange and disclosure of information and the use of expert witnesses. He wished the system of Protocols to be flexible enough to allow parties to comply but also to cater for those whose cases involve issues that are unique. When Protocols were in place, he envisaged that Judges should consider whether it was reasonable in a particular case for the parties to have followed the procedures set out in a relevant Protocol. He envisaged the imposition of sanctions on those who behaved unreasonably in failing to follow the Protocols.
The first five Pre-action Protocols have now been developed and are in place. These have been directed at specific problems in specific classes of proceedings, for example personal injury cases and clinical disputes claims. Their development has been undertaken by working groups whose members have a specific interest in these classes of actions. The work has been facilitated by the Lord Chancellor's Department (LCD) and, following consultation, they have been approved by the Head of Civil Justice. A practice direction has been made which provides a framework for Protocols and brings them within the ambit of rules of court. A copy of the Protocol Practice Direction can be found at Annex A.
It is now considered desirable that a General Protocol be implemented to apply to the range of claims not covered by a specific Protocol. It is desirable to avoid the proliferation of Protocols directed at specific topics. A general format covering many different types of claim is required to avoid complexity and confusion amongst potential litigants faced with an array of different requirements.
Question: What do you see as the advantages and disadvantages of having a General Protocol?
The General Protocol
The General Pre-action Protocol is for use in cases where an approved Protocol does not exist. There are at present five approved Protocols namely: Clinical Disputes; Personal Injury; Defamation; Construction and Engineering Disputes; and Professional Negligence. A copy of the draft Protocol is at Annex B.
LCD considers that the General Protocol should be easily understood by all its users, in particular by those who wish to act without legal representation, and that it should build on current good practice. LCD also takes the view that the Protocol should be applicable to all types of proceedings regardless of the value or the nature of the case.
Question: Should the protocol apply to a wide range of proceedings, regardless of complexity or value?
This particular Protocol intends to provide a general framework for parties when trying to resolve the dispute. It sets out a code of good practice which should be followed.
The Protocol does not impose any obligation on an individual or organisation to disclose documents other than where already provided for in statute, common law, or rules of court. However, where the court considers that one of the parties should have provided relevant documents, and proceedings become necessary, it may impose sanctions. Because cases will vary flexibility in timetables is possible but only by agreement between the parties and with due regard to the effect of the Statute of Limitations. Should the case come before the court, the court will decide whether parties have acted reasonably.
Since the Protocol is written in plain English its contents should be self-explanatory. The following elements require some policy explanation.
Question: Is the guidance contained in the protocol clear?
Disclosure
Lord Woolf was of the firm opinion that parties needed to adopt a sensible and co-operative approach from the earliest stages at which a potential claim begins to materialise. Key elements to this approach include early notification of claims coupled with sensible exchange of information. There will be circumstances in which a claimant or a defendant needs documents and other material. The General Protocol envisages that such information should be provided voluntarily between the parties to inform their decisions on whether to settle or proceed with the claim. If, however, a party cannot obtain a document they need to resolve the dispute then they may apply to the court to ask for an order requiring the disclosure of the document.
Question: Do you see any difficulties with the disclosure requirements set out in the protocol?
Expert Evidence
One of Lord Woolf's major concerns was that the unregulated use of expert evidence generated unnecessary cost in civil litigation. Many claims which will proceed under the General Protocol will not involve the use of expert evidence. Where expert evidence is necessary to resolve issues before proceedings, then the Protocol takes a pragmatic approach to limit the costs for the parties.
Question: Are there any practical difficulties, which might arise from the approach set out in the protocol about expert evidence?
Negotiations \ Settlements \ Alternative Dispute resolution
The Government believes that litigation should be a matter of last resort and is keen to promote negotiations, including the use of alternative methods of dispute resolution (ADR), such as arbitration, mediation or ombudsmen schemes.
Two formal steps played a key role in encouraging the use of ADR and embedding it within the wider civil justice system. One was the introduction of the Civil Procedure Rules in April 1999. Courts are now under a duty to encourage the use of ADR in appropriate cases and to facilitate this. The other was the Access to Justice Act. This gives all forms of dispute resolution an equal validity and states that where alternatives are available any public funding will be for the method which is most appropriate in the circumstances. For further information on the different types of ADR schemes, please see Annex C.
Sometimes parties will settle the main points of dispute in a case but will not be able to agree on the question of costs. Provided the substantive issues are settled and the only remaining issue is costs, then an application can be made to the court seeking an order to direct that the costs of the dispute should be assessed by a Judge.
The Enquiry Letter
The purpose of the enquiry letter is to identify the issues in dispute and to establish whether litigation can be avoided. Although the precise time will depend on the circumstances of the individual case, a suggestion for reasonable time to allow for a reply might be twenty-one days. However, depending on the circumstances of the case, a shorter or longer time may be appropriate. Where it is not possible for a defendant to comply with the proposed time limit, and there is a realistic prospect of settlement, an interim reply may be sent proposing a reasonable extension of this time limit. This will not bind the person with the complaint where they consider this to be unreasonable. However, where a claim is made prematurely, the court may impose sanctions.
Question: Do you consider the example enquiry letter to be suitable? Is its coverage adequate? If not, what else should be covered? Is the time limit allowed for reply sufficient?
Letter of Response
The letter of response enables answers to be given to the issues raised in the enquiry letter, for example admitting responsibility, denying responsibility or accepting responsibility for part of the problem. It also allows for an offer to settle the dispute to be made.
Question: Do you consider the example letter of response to be suitable? Is its coverage adequate? If not, what else should be covered? Should there be scope for giving an extension of time for reply?
Period of Reflection and Consideration
The period for reflection and consideration provides a 'breathing space' in which those in dispute can review the information they have received; the issues on which they agree or disagree; and any negotiations between them so that they can decide the strength and weakness of their case and whether they can settle or proceed.
Question: Is the period for reflection and consideration helpful? Are any difficulties expected in practice?
Compliance with the Protocol
If proceedings are issued, the court itself will be able to consider how far the parties have complied with the Protocol or if a party has been unreasonable. If the court feels that there has been unreasonable behaviour which has increased the time and cost of the litigation sanctions may be imposed upon the party who has not complied.
Question: Are there particular classes of proceedings or types of circumstances where the protocol should not apply? If so what are they?
Listed below are a series of questions upon which your views are sought. It would be appreciated for the purpose of this consultation if all answers could be kept succinct, and where applicable a yes / no answer be given.
What do you see as the advantages and disadvantages of having a general protocol?
Should the protocol apply to a wide range of proceedings, regardless of complexity or value?
Is the guidance contained in the protocol clear?
Do you see any difficulties with the disclosure requirements set out in the protocol?
Are there any practical difficulties which might arise from the approach set out in the protocol on expert evidence?
Do you consider the example enquiry letter to be suitable? Is its coverage adequate? If not, what else should be covered? Is the time limit allowed for reply sufficient? Is its coverage adequate? If not, what else should be covered?
Do you consider the example letter of response to be suitable? Is its coverage adequate? If not, what else should be covered? Should there be scope for giving an extension of time for reply?
Is the period for reflection and consideration helpful? Are any difficulties expected in practice?
Are there particular classes of proceedings or types of circumstances where the Protocol should not apply? If so, what are they?
Name:
Organisation:
Address:
If you are a representative group please give a summary of the people and organisations you represent
Please send your completed response to:
Bridget Doherty
Lord Chancellor's Department
Civil Landscape Branch
3rd Floor
Selborne House
54-60 Victoria Street
London SW1E 6QW
E-mail: Bridget Doherty
GENERAL
| 1.1 | This Practice Direction applies to the pre-action protocols which have been approved by the Head of Civil Justice. | ||||||
| 1.2 | The pre-action protocols which have been approved are set out in paragraph 5.1. Other pre-action protocols may subsequently be added. | ||||||
| 1.3 | Pre-action protocols outline the steps parties should take to seek information from and to provide information to each other about a prospective legal claim. | ||||||
| 1.4 | The objectives of pre-action protocols are:
|
COMPLIANCE WITH PROTOCOLS
| 2.1 | The Civil Procedure Rules enable the court to take into account compliance or non-compliance with an applicable protocol when giving directions for the management of proceedings (see CPR rules 3.1(4) and (5) and 3.9(e)) and when making orders for costs (see CPR rule 44.3(5)(a)). | ||||||||
| 2.2 | The court will expect all parties to have complied in substance with the terms of an approved protocol. | ||||||||
| 2.3 | If, in the opinion of the court, non-compliance has
led to the commencement of proceedings which might otherwise not have
needed to be commenced, or has led to costs being incurred in the proceedings
that might otherwise not have been incurred, the orders the court may
make include:
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| 2.4 | The court will exercise its powers under paragraphs 2.1 and 2.3 with the object of placing the innocent party in no worse a position than he would have been in if the protocol had been complied with. | ||||||||
| 3.1 | A claimant may be found to have failed to comply with
a protocol by, for example:
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| 3.2 | A defendant may be found to have failed to comply with
a protocol by, for example:
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PRE-ACTION BEHAVIOUR IN OTHER CASES
| 4 | In cases not covered by any approved protocol, the court will expect the parties, in accordance with the overriding objective and the matters referred to in CPR 1.1(2)(a), (b) and (c), to act reasonably in exchanging information and documents relevant to the claim and generally in trying to avoid the necessity for the start of proceedings. |
INFORMATION ABOUT FUNDING ARRANGEMENTS
| 4A.1 | Where a person enters into a funding arrangement within the meaning of rule 43.2(1)(k) he should inform other potential parties to the claim that he has done so. |
| 4A.2 | Paragraph 4A.1 applies to all proceedings whether proceedings
to which a pre-action protocol applies or otherwise. (Rule 44.3B(1)(c) provides that a party may not recover any additional liability for any period in the proceedings during which he failed to provide information about a funding arrangement in accordance with a rule, practice direction or court order). |
COMMENCEMENT
| 5.1 | The following table sets out the protocols currently
in force, the date they came into force and their date of publication:
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| 5.2 | The court will take compliance or non-compliance with a relevant protocol into account where the claim was started after the coming into force of that protocol but will not do so where the claim was started before that date. | |||||||||||||||||||||||||||||||||||||||
| 5.3 | Parties in a claim started after a relevant protocol came into force, who have, by work done before that date, achieved the objectives sought to be achieved by certain requirements of that protocol, need not take any further steps to comply with those requirements. They will not be considered to have not complied with the protocol for the purposes of paragraphs 2 and 3. | |||||||||||||||||||||||||||||||||||||||
| 5.4 | Parties in a claim started after a relevant protocol came into force, who have not been able to comply with any particular requirements of that protocol because the period of time between the publication date and the date of coming into force was too short, will not be considered to have not complied with the protocol for the purposes of paragraphs 2 and 3. | |||||||||||||||||||||||||||||||||||||||
| 1. | INTRODUCTION |
| 1.1 | Lord Woolf in his final report on "Access to Justice" of July 1996 recommended the development of Pre-action Protocols. |
| 1.2 | The aims of Civil Procedure Protocols are
to outline the steps parties should take to seek information from and
to provide information to each other when trying to resolve a dispute.
The objectives of Protocols are:
|
| 2. | SCOPE OF THIS PROTOCOL |
| 2.1 | This Protocol covers the range of disputes not covered by a specific protocol. (A current list of approved Protocols can be found in the Protocol Practice Direction in the Civil Procedure Rules). Although parties may live outside England and Wales, where the dispute is covered by the law of England and Wales, this protocol may still be used (e.g. where the dispute relates to property, such as houses, cars, shares etc. owned in England and Wales). |
| 2.2 | Whether or not parties to a dispute follow
the Protocol, they will be expected to act reasonably in exchanging
information and documents relevant to the dispute, and in generally
seeking to settle their dispute without the need to start proceedings.
They should also at all times have in mind that, if they are not able
to settle their dispute, and proceedings become necessary, under the
Civil Procedure Rules the court's over-riding objective is to enable
it to deal with cases justly. Rule 1.1 provides:
1.1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. (2) "Dealing with a case justly includes, so far as is
practicable - (a) ensuring that the parties are on an equal footing; |
| 3. | NOTES FOR GUIDANCE | |
| Varying the Protocol | ||
| 3.1 | The Protocol provides a timetable and arrangements for dealing with a dispute. In some complex disputes, the timetable and the arrangements may need to be varied to suit the circumstances of the case. Where parties consider use of the Protocol is not appropriate to a case, and the case then comes before the court, the court will expect an explanation as to why the Protocol has not been followed. | |
| Status of the Enquiry and Response Letters | ||
| 3.2 | Enquiry letters and subsequent responses are not intended to have the same status as the statement of case in proceedings. Matters may come to light as a result of investigation after the enquiry letter has been sent, or after the recipient has responded. This may result in later variations to a party's case. It would not be consistent with the spirit of the Protocol for a party to take a point on this provided there is no obvious intention by the party who changed their position to mislead. | |
| Disclosure of Documents | ||
| 3.3 | The aim of the early disclosure of documents is to promote the early exchange of relevant information which is reasonably required to help in clarifying or resolving the dispute. Parties can help by identifying in the enquiry and response letters the documents which they wish to see. The documents will vary according to the nature of the dispute. If documents are provided on the basis that they are not to be used for other purposes the recipient should comply with that stipulation. | |
| 3.4 | The Civil Procedure Rules provide for a person to apply to the court for disclosure where they cannot obtain necessary documents by other means. Should a matter come before the court on this issue Part 31 of the Civil Procedure Rules dealing with disclosure will apply. | |
| The use of Experts | ||
| 3.5 | The use of experts will not always be necessary in a dispute. Where a case comes before the court, Part 35 of the Civil Procedure Rules, which deals with the use of experts in court cases, provides that no party may call an expert or use an expert's report as evidence without the court's permission. It also makes it clear that expert evidence should be restricted to that which is reasonably required to resolve the proceedings. If it is decided to use an expert, further information on the appointment of and role of the expert witness is contained in Annex C. | |
| Negotiations, Settlements and Alternative Dispute Resolution | ||
| 3.6 | Parties are encouraged to begin discussion and negotiation as soon as it is apparent that there is a dispute, with a view to settling the dispute. Parties are advised to consider using a form of alternative dispute resolution at an appropriate stage in the protocol procedure. This may be through mediation, the use of an ombudsman or other alternative method for resolving disputes. Alternative dispute resolution can be used as an aid to settle the dispute or as a way of dealing with particular issues within the dispute. The Protocol does not specify when or how this might be done but parties should bear in mind that the courts increasingly take the view that litigation should be a last resort and that claims should not be issued prematurely if a settlement is a reasonable possibility. | |
| 4. | THE PROTOCOL | |
| The Enquiry Letter | ||
| 4.1 | An enquiry letter, providing details of the dispute, should be sent as soon as sufficient information is available. Enough detail should be given in the enquiry letter to enable the recipient, his insurers and/or legal representative to make investigations into the nature of the dispute. Copies of relevant documents should be attached to the letter. It is recommended that parties use a standard enquiry letter, an example of which is at Annex A. The enquiry letter may be amended to suit the particular case. | |
| Acknowledgement and Letter of Response | ||
| 4.2 | The recipient, his insurer or legal representative should acknowledge the enquiry letter within twenty-one calendar days of its receipt. | |
| 4.3 | If no reply is received from the recipient or his representative within twenty-one calendar days it may be reasonable to start proceedings. Other possibilities should not, however, be overlooked. | |
| 4.4 | If the recipient needs to make investigations or obtain additional information before sending a response letter, this should be done promptly and within a maximum of three months from the date of acknowledging the inquiry. Note that the 3 months is a maximum and should not be used to delay providing a response. In many instances a substantially shorter period will be reasonable. Where the recipient lives, or the dispute involves an event, outside the jurisdiction of the court (i.e. England and Wales) the time periods of twenty-one days and three months may reasonably be extended, but should not exceed forty-two days and six months respectively. | |
| 4.5 | A response letter should be sent with copies of any documents relevant to the issues in dispute. It is recommended that a standard response letter is used, an example of which is at Annex B. The response letter may be amended to suit the particular case and should specify what, if any, further information and/or documents are required and if so specify a date by which they should be provided. The letter of response contains three options:
|
|
| 5. | PERIOD OF REFLECTION AND CONSIDERATION | |
| 5.1 | Where a claim has not been resolved as a result of following the Protocol, the parties may wish to review the issues in dispute and the evidence that the court is likely to need to decide those issues, before a formal claim is issued with the court. | |
| 6. | COMPLIANCE WITH THIS PROTOCOL | |
| 6.1 | The court is likely to treat the standards set in protocols as the normal, reasonable way of dealing with disputes. If proceedings are issued, it will be for the court to decide whether sanctions should be applied for non-compliance with the Protocol. Guidance on the court's likely approach will be given from time to time in Protocol Practice Directions. | |
| 6.2 | If the court has to consider the question of compliance after proceedings have begun, it is not likely to be concerned with minor infringements, for example exceeding a time limit by a short period in providing relevant information. The other party will nevertheless be expected to have complied with the Protocol. The court is likely to look at the effect of non-compliance on the other party when deciding whether to impose sanctions. | |
| 6.3 | This Protocol does not alter the statutory time limits for starting court proceedings. A claimant is required to start proceedings within those time limits and to adhere to subsequent time limits required by rules of court or ordered by the court. If proceedings are for any reason started before the parties have followed the procedures in this Protocol, the parties are encouraged to agree to apply to the court for a stay whilst the Protocol is followed. | |
Protocol - Annex A
To: (Insert name and address)
Your Reference:
Our Reference:
Date:
Dear Sir/Madam,
| Account number: | 123456 | |
| Invoice number: | 1/01 | |
| Goods: | Timber | |
| Date received: | 10/01 | |
| Value: | £500 | |
| Serial number(s) | N/A |
I am writing to you about the timber you supplied to my firm Joe Bloggs Ltd. I am using the General Pre-Action Protocol, which is approved under the Civil Procedure Rules.
I take the view that (please give a brief outline of the dispute, for example, the timber was defective, damaged, or there were missing items). Please provide me with your proposals for settling the dispute. (Alternatively you may set out how much you think they should pay you for the defective, damaged or missing goods and any other losses, for example loss of business because you could not undertake an order/operate some machinery etc.) To date, costs of pursuing this matter have been £x. I attach a schedule of costs.
If you are insured, please note that your insurers may need to see this letter as soon as possible.
I enclose copies of the following documents, which are relevant to the dispute:
(list documents enclosed)
At this stage of the dispute I consider that you should provide the following relevant information and documents. (List the information and documents you consider relevant and necessary.)
I expect to receive an acknowledgement of this letter from you, or your insurers within 21 days of your receipt of this letter, which I shall assume will be in the normal course of post.
Please reply to:(Insert full name and address)
Protocol - Annex B
To: (Insert name and address)
Your Reference:
Our Reference:
Date:
Dear Sir/Madam,
| Account number: | 123456 | |
| Invoice number: | 1/01 | |
| Goods: | Timber | |
| Date received: | 10/01 | |
| Value: | £500 | |
| Serial number(s) | N/A |
Thank you for your letter dated (insert date) in which you set out details of a dispute about (please give a brief outline of the dispute, for example, the goods were defective, damaged, or there were missing items).
I fully agree with your description of the dispute and (use either a) or b))
a) I am prepared to pay £x in full settlement
of the dispute. Or
b) I would like to discuss with you how the dispute
can be settled.
I agree that (set out what parts of the dispute you do agree with), however (set out what you disagree with and why). (Use either a) or b))
a) I am prepared to offer £x to settle the
dispute. Or
b) I would like to discuss with you how the dispute
can be settled.
I disagree (set out why you disagree for each part of the dispute). I would like to discuss your concerns with you. Will you please contact (me/a named person) to arrange a suitable date and time.
I enclose the following information and copies of the following documents relevant to the dispute.
In return, I would like to receive the following information and to have copies of the following documents:
(list information and documents required)
I expect a response from you by …….
Reply please to: (Insert full name and address)
Protocol - Annex C
Experts are sometimes used to provide evidence in a dispute, for example about the extent, nature and cost of damage to property or goods.
Paragraph 3.5 of the Notes of Guidance to the Protocol makes it clear that experts will not always be necessary in a dispute.
When considering whether or not to appoint an expert you should bear in mind that, if a case comes before the court, Part 35 of the Civil Procedure Rules will apply.
Part 35 provides that:
a) may call an expert or put in evidence an expert's report without the court's permission;
b) expert evidence should be restricted to that which is reasonably required to resolve the proceedings;
c) in a case allocated to the small claims track, no expert may give evidence whether written or at the hearing without the permission of the court;
d) where parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by one expert only.
Arrangements for appointing a jointly agreed expert
The following information aims to help consultees understand the different forms of alternative dispute resolution which may be considered when trying to resolve a dispute.
Arbitration is a procedure whereby both sides to a dispute agree to let a third party, the arbitrator, decide. In some instances, there may be a panel. The arbitrator may be a lawyer, or may be an expert in the field of the dispute. He will make a decision according to the law. The arbitrator's decision, known as an award, is legally binding and can be enforced through the courts.
In the United States, court-annexed non-binding arbitration is widely used. The finding of the arbitrator becomes a binding order of the court if neither party seeks a rehearing by a judge.
Early Neutral Evaluation is a process in which a neutral professional, commonly a lawyer, hears a summary of each party's case and gives a non-binding assessment of the merits. This can then be used as a basis for settlement or for further negotiation.
Expert Determination is a process where an independent third party who is an expert in the subject matter is appointed to decide the dispute. The expert's decision is binding on the parties.
Mediation is a way of settling disputes in which a third party, known as a mediator, helps both sides to come to an agreement which each considers acceptable. Mediation can be 'evaluative', where the mediator gives an assessment of the legal strength of a case, or 'facilitative', where the mediator concentrates on assisting the parties to define the issues. When a mediation is successful and an agreement is reached, it is written down and forms a legally binding contract, unless the parties state otherwise.
Conciliation is a procedure like mediation but where the third party, the conciliator, takes a more interventionist role in bringing the two parties together and in suggesting possible solutions to help achieve an agreed settlement. The term 'conciliation' is gradually falling into disuse and the process is regarded as a form of mediation.
Med-arb is a combination of mediation and arbitration where the parties agree to mediate but if that fails to achieve a settlement the dispute is referred to arbitration. The same person may act as mediator and arbitrator in this type of arrangement.
Neutral fact finding is a non-binding procedure used in cases involving complex technical issues. A neutral expert in the subject matter is appointed to investigate the facts of the dispute and make an evaluation of the merits of the case. This can form the basis of a settlement or a starting point for further negotiation.
Ombudsmen are independent office holders who investigate and rule on complaints from members of the public about maladministration in Government and in particular services in both the public and private sectors. Some ombudsmen use mediation as part of their dispute resolution procedures. The powers of ombudsmen vary. Most ombudsmen are able to make recommendations, only a few can make decisions which are enforceable through the courts.
Utility Regulators are watchdogs appointed to oversee the privatised utilities such as water or gas. They handle complaints from customers who are dissatisfied by the way a complaint has been dealt with by his supplier.
PROPOSALS FOR A GENERAL PRE ACTION PROTOCOL
OBJECTIVES AND INTENDED EFFECT
The proposal represents a continuation of the Lord Chancellor's programme of Civil Justice Reforms which aim to reduce cost and delay in civil proceedings. It is a specific objective of the reforms that Pre-action Protocols deliver justice on an equal footing, at reasonable cost, speedily and in an easy to understand way. Procedures should also be simplified and streamlined wherever possible. Protocols aim to resolve disputes between parties by helping them to reach a settlement outside court.
Protocols are developed by working groups and interested parties with LCD acting as a facilitator. Following a process of consultation the Protocol is submitted to the Deputy Head of Civil Justice (currently Lord Justice May) for approval. The Protocol practice direction makes it clear that whilst compliance with a protocol is voluntary, someone who fails to comply with a Protocol or behaves unreasonably during the pre-litigation period, may face sanctions being imposed once proceedings have begun.
The General Pre-action Protocol is to be used in cases where an approved Protocol does not exist. There are at present five approved Protocols, namely: Clinical Negligence Disputes; Personal Injury; Defamation; Construction and Engineering Disputes and Professional Negligence. As well as these five Protocols, there are at least fifteen to twenty other Pre-action Protocols which are in development by various working groups. The Department recognises that the General Protocol may preclude some other Protocols from being required.
RISK ASSESSMENT
The principles set down by Lord Woolf are well known to the members of the legal professions who aim to resolve claims on behalf of their clients. The Civil Procedure Rules require them to observe the principle of proportionality and there is an expectation that they will do all that they can to resolve their clients' disputes before resorting to litigation. The General Protocol formalises this expectation and also encourages the use of alternative dispute resolution as a means of resolving disputes.
QUANTIFICATION AND SCALE OF ISSUE
The protocol will apply to all civil cases where the parties become actively involved in dispute resolution.
OPTIONS
Options have been considered in relation to the implementation of the General Pre-action Protocol:
(A) Do nothing and allow the various working groups to continue with the development of their particular Protocols. This would, however, result in a proliferation of Protocols which require expert knowledge of each and hence generate costs. Areas not covered by specific protocols would have no corresponding framework for dispute resolution.
(B) Implement a general protocol providing a framework for dispute resolution across all civil cases. This is the preferred option.
COSTS
As lawyers should already be operating under the principles contained in the Protocol, there should be no significant additional cost as a result of following the procedures contained in it. The stages in the Protocol would have to be followed at one point or another in the course of litigation to bring a case to trial.
BENEFITS
There should be no significant impact on businesses and charities so far as the preparatory stages of their cases are concerned. However, as the Protocol requires lawyers to follow the steps towards settlement, it may mean that fewer proceedings reach the stage of issue and trial. It is difficult to quantify the benefits but if a Protocol prevents 1,000 claims involving businesses and charities being issued and reaching trial and if those claims would have cost the parties £2,000 on average after issue (including court fee), then businesses would have saved £2 million.
Insurance companies fund much litigation. If an extra 1,000 cases where insurance companies are funding litigation are not issued and do not come to trial, and £2,000 is the average for post issue costs, then they would save a further £2 million, and the increased cost of premiums would not be shared amongst their customers.
Litigants in person will also have clearer guidelines on pre-litigation procedures by using the Protocol. This may save legal costs for their opponents and also court time, but these savings are probably unquantifiable.
There may also be intangible benefits in that parties may retain better relationships because a settlement is reached outside court.
IMPACT ON THE COURTS
While it would seem that savings would accrue to the court from the fact that these cases would not be issued as proceedings, and hence not occupy court time, such savings could not be realised quickly or in isolation from other cost saving initiatives.
A small number of cases spread over a large number of courts means that the reduction in workload for individual courts would be small. The main costs incurred for courts are fixed - accommodation, staff and judicial salaries, and do not respond to small decreases in workload.
On the other hand, court fees for the cases which would have been issued will no longer be received to off set the cost of over-heads. The amount of income lost for 1,000 cases if the issue fee were £60.00 per case would be £60,000.00.
CONTACT POINT
If you have any queries or comments about this Partial Regulatory Impact Assessment (RIA) which would inform the completion of the final RIA please send them to:
Anna Rees
Civil Procedure Branch
Civil Justice Division
OP 3.13
Selborne House
54-60 Victoria Street
London SW1E 6QW
Tel: 020 7210 0699
Fax 020 7210 8559
Anna Rees
If you have any complaints or comments about the consultation process, you should contact the Lord Chancellor's Department's consultation co-ordinator, Bruce Eadie, on 020-7210 1344 or e-mail him at Bruce Eadie.
Alternatively, you may wish to write to him at the address below:
The criteria in the Code of Practice on Written Consultation issued by the Cabinet Office is as follows:
Timing of consultation should be built into the planning process for a policy or service from the start, so that it has the best prospect of improving the proposals concerned, and so that sufficient time is left for it at each stage.
It should be clear who is being consulted, about what questions, in what timescale and for what purpose.
A consultation document should be as simple and concise as possible. It should include a summary, in two pages at most, of the main questions it seeks views on. It should make it as easy as possible for readers to respond, make contact or complain.
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