Comments from Thompsons Solicitors – March 2007

About Thompsons

Thompsons is the UK's most experienced trade union and personal injury law firm. It has a network of offices across the UK, including the separate legal jurisdictions of Scotland and Northern Ireland.

Thompsons only acts for trade union members and the victims of injury, never for employers or insurance companies. At any one time the firm will be running 70,000 claims.

The firm participates regularly in government consultations on legislative issues.

1. Is a Consolidated Protocol thought to be beneficial?

A. If so, what do you consider to be the benefits?
B. If not please say why.

Thompsons does not consider that a consolidated protocol would be beneficial to either claimant or defendant.

The protocols, in their present form, are targeted for particular types of case and areas of law. The defamation protocol, for example, relates to setting out in correspondence the distinct prima facie case for defamation, such as the defamatory interpretation of words. This could not be covered by a catch-all protocol.

The protocols work well, when they are followed by the parties. They have resulted in the early resolution of claims.

It took two years to get agreement on the disease protocol. We are astonished that time is being spent reviewing something that works, subject to enforcement.

We cannot see any cost benefit to either claimant or defendant in consolidating the individual protocols. Practitioners know which protocols apply to different types of cases, how those protocols work and know where they stand in terms of complying with those protocols.

The logic of having a single protocol may be that it would remove the need to constantly review what must be done, but the reality is that each claim is different

and it would still be necessary for the practitioner to refer to the appendix that is relevant to the claim.

To consolidate the protocols will result in a significant period of uncertainty and confusion. Practitioners will have to attend training courses to understand the consolidated protocol. the effect will be a watering down of the effectiveness of the individual protocols.

An example of this is the removal in the consolidated protocol of the requirement that a defendant responds on liability within 3 months and the proposal that the parties agree a reasonable time for response between themselves. Why remove the certainty that parties presently have under the individual protocols? It will only lead to disputes over whether a refusal to extend the 3 month period is reasonable.

2. To achieve a consistency of style and content should the Consolidated Protocol include full precedents, such as letters of claim or letters of response (as in the personal injury protocol for example)?

A Is it preferable to have templates (as in the Clinical Negligence protocol)?
B. Is it better to have general guidance (as in for example, the Judicial Review protocol)?

If a consolidated protocol is to be adopted then it is preferable to have templates rather than guidance. The use of templates mean that all parties know what is required in terms of information sought and provided.

Parties need to know where they stand and to be confident of their position. If parties only have “guidance” to rely upon this will lead to confusion among the parties as to, for example, whether a protocol has been complied with or not. This in turn will lead to satellite litigation and that goes against the spirit of the protocols.

3. Which of the appendices in the various protocols can now be dispensed with in the interest of brevity, consistency and continuing relevance? One example is the continued inclusion in annex D of the Protocol for the Resolution of Clinical Disputes, of Lord Woolf’s recommendations from 1996. It is submitted that this is no longer necessary or aids the effectiveness of that protocol. 

We do not feel that any of the appendices can be dispensed with. The appendices give the parties clarification and certainty of approach. Practitioners know, for example, what information a letter of claim should contain in respect of different types of cases. This reduces disputes on what details need to be provided by the parties and it also reduces disputes on whether a protocol has been breached or not.

Annex D gives a useful background as to why the protocol was introduced. Its continued inclusion does not affect the way in which the protocol works in practice. There is therefore no practical benefit or cost saving in removing it.

4. The Protocol on Pre-Action Protocols provides specifically for sanctions where proceedings are commenced as a result of non-compliance with a protocol. The Protocols themselves refer broadly to the court’s power to apply sanctions for non-compliance without specificity. It is said by many interested parties that the Protocols would benefit from the inclusion of sanctions to assist in dealing with parties who fail to fulfil the requirements of the protocol. 

A. Do you agree with this view?
B. If so, what format should such sanctions take?
C. If not why not? 

The protocols should have the teeth of sanctions. The protocols are not incorporated into the Civil Procedure Rules and so as a national law firm we see vast differences of approach being taken by the judiciary in determining whether a protocol has been breached and what the sanctions to be applied should be.

While some judges take a dim view of a protocol not being complied with, others will say that the protocols are for guidance only and simply urge the party to try to follow the protocol next time. In our experience the protocols are too often honoured in the breach and not taken seriously by defendants.

An example of the weakness of the protocols can be seen where a defendant fails to respond on liability within a 3 month period.

A claimant can make an application for pre action disclosure under CPR Rule 31.16. However CPR Rule 48.2 states that the general rule is that the court will award costs to the party against whom the order is sought. However CPR Rule 48.3 states that the court may at its own discretion make a different order, having regard to all the circumstances of the case, including whether the parties have complied with any relevant protocols.

The protocols should be incorporated into the CPR. Costs sanctions should be mandatory when there are breaches. This would encourage the parties to meet the timescales set by the protocols and would reduce the need for pre action disclosure applications to be made.

5. Are there parts of the Pre-Action Protocol that should be simplified or removed because they add more cost than benefit?

A. If so, which parts and
B. Why?

The protocols, in their present form, work well, subject to enforcement. To simplify any part of them would water down their effectiveness.

6. What other areas within the Pre-Action Protocol, if any, would benefit from subject specific rules?

The protocols are working well. There would be no benefit to be gained from any rule changes.

7. Do you have any other comments?

There is a real benefit in having the certainty of individual protocols. We cannot see any cost benefit to either claimants or defendants in consolidating the individual protocols. Practitioners know which protocols apply to different types of cases, how they work and where they stand in terms of complying with those protocols. To consolidate the protocols will result in a significant period of uncertainty and confusion.

It has taken practitioners a long time to get used to the protocols, to understand what they contain and how they work. The advances that have been made by the protocols in persuading parties to negotiate are enormous when compared with the “trench warfare” which existed a decade ago. It would be a major setback to generalise the protocols. It would increase uncertainty and would provoke satellite litigation.

What is needed is for the protocols to have real teeth.