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					       Summary of responses to CJC consultation on a Consolidated Pre – Action Protocol




                SUMMARY OF RESPONSES
     CONSULTATION PAPER ON CONSOLIDATED PRE-ACTION
                      PROTOCOL




A total of 42 responses to the consultation paper were received. The largest
number came from legal professionals – 17 from representative bodies such as the
Housing Law Practitioners Association and the Association of Personal Injury
Lawyers and 6 from individual forms or practitioners. There were 7 responses from
members of the judiciary, including those on behalf of judges of the Technology
and Construction Court, the Administrative Court, the Chancery Division and the
Association of District Judges.

From the commercial business field there were 5 responses including those from
the ICM, AXA insurance and the ABI. Various other groups responded, including
the Medical Defence Union, the Medical Protection Society, the OFT and the
Citizens Advice Bureau.

A full list of respondents is available at Annex A

Respondents                                                 Number           Percentage%
Legal profession: Judiciary (including                      7                17%
representative bodies)
Legal profession: Practitioners (including                  23               55%
representative bodies)
ADR providers                                               1                2%
Advice sector                                               1                2%
Government Departments                                      1                2%
Trade Unions                                                1                2%
Businesses (Financial Companies, Debt                       5                12%
Collecting agencies, Insurers)
Others                                                      3                7%
Total                                                       42
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       Summary of responses to CJC consultation on a Consolidated Pre – Action Protocol




Overall – 22 (52%) were opposed to the idea of a consolidated pre-action protocol.
The main focus of this particular group of respondents was that fact that great time
and effort had been put into creating the existing subject specific protocols by
those that use them and that any attempt to create a one size fits all system would
do more harm than good and have the effect of possibly watering down the
effectiveness of the requirements under the said proposal.

However, a significant proportion of respondents, 20 (48%) respondents were in
favour of a consolidated protocol, although it must be noted that 7 of these
respondents only recognised and agreed in principle with some of the simplification
aims behind the proposal, and went on to express reservations over the
effectiveness, timing and need for a consolidated protocol and would not support
its introduction.

There was also some concern the that proposals were a bit pre-mature given the
areas of substantial reform are being considered by the Ministry of Justice in the
personal injury and compensation field.

A few respondents misunderstood the proposals and were not clear whether it was
to merely consolidate the nine current pre-action protocols, or to both consolidate
those protocols and apply the new protocol to all civil claims.

Responses to Specific Questions



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.

   The main benefit cited for having a consolidated protocol by a number of
   respondents was that fact that it would ensure clarity and consistency for all
   parties to the claim. It was noted that the number of pre-action protocols had
   grown considerably since the introduction of the Civil Procedure Rules, and that
   this could be seen to have caused confusion amongst practitioners and to a
   larger extent litigants in person. The common view shared with this set of
   respondents was that current individual protocols cover much of the same

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   Summary of responses to CJC consultation on a Consolidated Pre – Action Protocol




material but in a slightly different way, which does not encourage consistency
and that a single source for such a framework will make it simpler as a
reference point. Many respondents agreed that it was time to take stock to see
whether improvements could be made to the system.

Two respondents agreed that a consolidated protocol would assist
immeasurably litigants in person in simplifying pre-action behaviour generally
and assisting with early settlement. One respondent expressed a view that in
the years since the CPR has come into effect, there has been a reduced need
for significant distinctions between different protocols in areas of civil litigation
and that a single source for such a framework will make it simpler as a
reference point.

Another benefit highlighted was that it would provide a means by which generic
issues and steps can be addressed that will apply to all areas of litigation
namely notification of claims, letter of the claim, core information exchange,
funding issues, expert evidence and ADR. This would result in the
simplification and rationalisation of the existing protocols and hopefully reduce
the text to manageable proportions.

It was also noted that a consolidated protocol would effectively act as a guide
to appropriate pre-action behaviour in all claims – including those not currently
covered by pre-action protocols. It will also allow for greater ease for updating
and adaptation to future changes in policy and practice.

21 respondents did not consider a consolidated protocol as being beneficial. Of
this group 9 respondents acknowledged in principle that a consolidated
protocol could simplify and clarify the minor differences of the current
proliferation of protocols. However in their considered views any benefit was
outweighed by the downsides of such a proposal.

A common view expressed by respondents was that trying to adopt one-size
fits all approach in such diverse areas of the law would be counter-productive.
This would be seen to have a watering down effect in the particular needs of
the various protocols for a particular type of claim. For example, it was argued
that the removal 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 will create uncertainty and lead to disputes.

Respondents commented that the current pre-action protocols were designed
and aimed at a specific type of case. Most of these have been drafted by

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      Summary of responses to CJC consultation on a Consolidated Pre – Action Protocol




   specialist groups of practitioners often following extensive negotiation, worked
   well when followed by parties and have resulted in early resolution of claims.

   Nearly all those who opposed the idea of a consolidated protocol expressed
   concern that a consolidated protocol would be irrelevant to the vast areas of
   specialist claims such as housing disrepair, judicial review, professional
   negligence and intellectual property for instance. In particular it was held that
   the objectives of such a protocol could only be fulfilled if the common
   denominator of core elements are relevant to all or most of the separate
   protocols and not outweighed by the particular requirements of each protocol –
   which clearly isn’t the case at present.

   Many respondents had commented in relation to their areas of specialisation
   and were keen to emphasis the fact that that their respective protocols were
   working well with those that use them. In particular, a consolidated protocol
   would prove unwieldy and difficult to use due to its size and the likelihood of
   parties having to consider more than one document namely the protocol, the
   schedule and the appendices. This would lead to confusion and ultimately add
   to overall costs.

   Some respondents considered that the proposed consolidated protocol would
   in fact be of less use to litigants in person. The concern here was that the
   litigant in person would be confused having to refer to both the proposed
   protocol and the specialist annexe. They would find more comfort in knowing
   the protocol they were required to use was specifically tailored for his type of
   case.

   There was also concern that the proposals would have the effect of extending
   the more prescriptive elements of some of the protocols, such as the detailed
   provisions in relation to expert evidence, which now appear in the draft
   consolidated protocol. This would lead to parties having to carry out steps,
   which are of no particular benefit to their case and hence add the expense of
   litigation.



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)

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      Summary of responses to CJC consultation on a Consolidated Pre – Action Protocol




   b) Is it better to have general guidance (as in for example the Judicial
      Review protocol)?

   25 respondents replied to these questions. 22 respondents supported the use
   of templates and/or guidance in a Consolidated protocol. 11 were against the
   use of full precedents and templates.

   Those in support acknowledged that the use of such templates would ensure
   that parties are aware in terms of what information is sought and required. It
   was also suggested that this would promote consistency and clarity. Those
   protocols that currently had templates were identified as being of great
   assistance to litigants in person needing assistance in complying with the
   protocols.

   6 Respondents cite a preference to the use of general guidelines. It was
   suggested that the use of templates and precedents in a consolidated protocol
   would render it too large and unwieldy. This would carry the danger of
   defeating any simplification claims.

   The main argument put forward against the use of templates was that of their
   inflexibility. It was suggested that such an approach could become counter-
   productive in cases where parties might feel bound to follow the precedent
   even though a more flexible approach might be more appropriate.

   It was further highlighted that precedents were not included in many existing
   protocols due to the wide range of claims available in those areas e.g. TCC
   cases. Any attempt to use template letters in specific areas would lead to
   material being too generalised to be of use or too inadequate to cover the full
   range of typical cases.

   The underlining view from the majority however was that there would be no
   benefit in moulding all existing protocols into a “straightjacket” which ultimately
   would lose material useful for one type of claim or impose on others something
   of no value.



3. Is there material from the current protocols included in the appendices
   which can now be dispensed with, in the interest of brevity, consistency
   and continuing relevance?

   20 respondents agreed that there was material that could be dispensed with.
   10 of these respondents agreed with the example given in the question. It was
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       Summary of responses to CJC consultation on a Consolidated Pre – Action Protocol




   also suggested by 2 respondents that the section on experts be dropped, as
   the generic process would be covered in a consolidated protocol. One
   respondent suggested that any revised protocol should be limited to its key
   aims; the possibility of sanctions; procedure to be adopted at pre-action stages
   and ADR. 9 respondents expressed the view that none of the appendices could
   be dispensed with as they offered clarity and certainty of approach to parties.
   One respondent suggested that any decision to dispense with material should
   not be taken without further consideration from the working groups that
   originally drafted them.



4. The Practice Direction 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 form should such sanctions take?

   c) If not why not?

   There were 33 responses to this question and an overwhelmingly majority, 25
   shared the view that sanctions would not be appropriate for inclusion within
   protocols. It was widely held by these respondents that the court already has
   adequate powers within its discretion to deal with non-compliance and that any
   inclusion would create a more prescriptive and less flexible regime and lead to
   unnecessary satellite litigation.

   A number of respondents were concerned that any attempt to impose a blanket
   approach to sanctions across all protocols could undermine the spirit of
   openness and co-operation of the protocols under the Civil Procedure Rules. It
   was reiterated that the protocols were intended to represent best practice and
   that compliance with the spirit was equally as important as compliance to the
   letter of the protocols.

   Further points



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      Summary of responses to CJC consultation on a Consolidated Pre – Action Protocol




         The Practice Direction on Pre-Action Protocols clearly sets out the
          sanctions available to the court for failure to comply with the terms of an
          approved protocol

         Sanctions could not be included in the protocols or even the Practice
          Direction, as the court only has the power to impose sanctions once
          proceedings have been issued. Unless courts could be give power to
          hear applications about breaches at the pre-issue stage, including
          sanctions in protocols would be pointless.

         Sanctions are only useful if it is enforceable – the protocols do not
          contain any enforcement procedures. As such any sanctions would
          require changes to Rules and Practice Directions.

   Respondents in support of protocols including sanctions argue that their
   presence will add more weight to the protocols and the increased likelihood of
   them being followed. Sanctions would also promote a consistent approach by
   the court when dealing with non-compliance



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?

   There was some confusion on this question. Some respondents were not sure
   whether it refers to existing Pre-Action Protocols or the draft Consolidated
   Protocol. This part will summarise those responses that refer the Consolidated
   Protocol. Ten respondents and either no comment or were happy with the
   current draft. 12 respondents provided specific comments on the question.

   The following were amongst issues identified

         It was not clear how the timeframe in paragraphs 14 and 15 of the Pre-
          Action Protocol would work in practice.

         The draft introduces new (and unhelpful) concepts in other key areas
          e.g. paragraph 25 unhelpfully conflicts with the Personal Injury Protocol
          and CPR Part 35.


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      Summary of responses to CJC consultation on a Consolidated Pre – Action Protocol




          The principals of many sections of the draft are covered in the existing
           Protocols Practice Direction. It was also suggested that the Protocols
           Practice Direction could be incorporated into the Consolidated Pre-
           Action Protocol, thus reducing further the individual documents
           involved.

          Schedule 2 could be rationalised and a common response time (or
           smaller number of response times) could be produced.

          The requirement to seek directions for cases issued at the end of the
           limitation period is unnecessary

          Paragraphs 20, 33 and 37 relate to subject specific matter and should
           be included in the appendices.

          Paragraph 13 would be beneficial, if in addition to the other information
           that the claimant has to disclose, the claimant also had to detail their
           source of funding.

          Paragraphs 13(vi) and 18(f) should be removed, as naming experts at
           this stage could be slightly pre-mature.

          Paragraphs 9-11: This requirement goes beyond reasonable behaviour.
           It should not be regarded as obligatory as this may increase costs

          The draft provides that in defamation cases a response should be
           provided to the letter of claim - within the time period set out in
           schedule 2[14 days] or such other period as the parties may reasonably
           agree. It has been suggested that the original wording from the
           defamation pre-action protocol be maintained or that Para 20 be
           amended in order that defamation is treated in the same way as judicial
           review.



6. What other areas of Civil Litigation, if any, would benefit from subject
   specific requirements appended to the consolidated protocol?

   There were 37 responses to this question. 16 highlighted other areas that
   would benefit from having subject specific requirements appended to the
   consolidated protocol. 21 respondents had no suggestions or further comment
   on this question.


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       Summary of responses to CJC consultation on a Consolidated Pre – Action Protocol




   4 respondents suggested that the area of intellectual Property would benefit
   from subject specific requirements. Other areas identified included
   dilapidations, mortgage arrears, debt, claims for unlawful detention,
   mesothelioma, IT, Competition cases, multi-party claims and Part 20 claims




7. Do you have any other comments

   The responses to this question were extensive and varied. Many served to re-
   iterate the respondents’ position on the proposal. Others highlighted additional
   modifications that could be made to the draft protocol.

Conclusion

8. The responses to the questions, and other comments received have clearly
   highlighted the difficulties in producing a single pre-action protocol that
   integrates the core steps and guidance common to all of the existing pre-action
   protocols. A majority of the responses were opposed to the proposal and there
   was an understandable reluctance to reduce the number of pre-action protocols
   from stakeholders who had committed so much time to drafting their respective
   pre-action protocols originally.

9. In light of the responses and following further consideration, the CJC accepts
   that trying to create one-size fits all system could go a long way in undermining
   the commitment that had gone into creating and promoting these pre-action
   protocols in the first place. The CJC also recognises that the ultimate objectives
   of such a pre-action protocol could only be fulfilled if the common denominator
   of core elements are relevant to all or most of the separate pre-action
   protocols, and not outweighed by the particular requirements of each pre-action
   protocol.

10. It has therefore been decided not to take forward the proposal but instead to
   focus on producing a General Pre-Action Protocol as a default protocol where
   other pre-action protocols are not applicable and to review and if appropriate
   modernise the existing pre-action protocols. This intention arises from
   respondents acknowledging the need to avoid a proliferation of pre-
   action protocols, and as there was a general recognition by respondents
   that the various pre-action protocols are in some cases out-dated and
   contain unnecessary information.

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Summary of responses to CJC consultation on a Consolidated Pre – Action Protocol




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       Summary of responses to CJC consultation on a Consolidated Pre – Action Protocol




Annex A – List of Respondents




NFU Mutual
Medical Protection Society
Medical Defence Union
AXA Insurance
Trade Marks Patents & Design Federation
Association of British Insurers
Institute of Credit Management
Claims Against Professionals
Office of Fair Trading
TUC
Centre for Effective Dispute Resolution
Browne Jacobson LLP
Clifford Chance LLP
Thompsons Solicitors
Herbert Smith LLP
Beachcroft LLP
Reed Smith Richards Butler LLP
NHS Litigation Authority
Housing Law Practitioners Association
The Intellectual Property Bar Association
Technology and Construction Solicitors Association
Commercial Bar Association
Technology and Construction Bar Association
Liverpool Law Society
City of London Law Society
Association of Personal Injury Lawyers
Forum of Insurance Lawyers
London Solicitors Litigation Association
Intellectual Property Lawyers Association
Chancery Bar Association
Motor Accident Solicitors Society
Professional Negligence Bar Association
The Law Society
BBC
Association of District Judges
Her Majesty’s Council of Circuit Judges
District Judge Suzanne Burn
His Honour Judge Tetlow
Mr Justice Ramsey
The Hon. Mr Justice Sullivan
The Right Hon. Sir Andrew Morritt
Citizens Advice Bureau




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Summary of responses to CJC consultation on a Consolidated Pre – Action Protocol




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