Whilst it is acknowledged that there are a number of Protocols, to some extent overlapping, each has been drawn up by specialist practitioners and users of a particular type of dispute to reflect the individualities and technical differences in the handling of those particular types of disputes. Each was the subject of wide consultation. It would be regrettable to see that investment lost in any form of consolidated Protocol. Also, consolidation is merely surface simplification, in that there is less paper. It does not simplify the procedure for its users.

There are good reasons why differing types of dispute should be and are handled in different ways, including at the pre-action stage. Some types of dispute require more urgent attention than others and cannot justify the long pre-action period which is necessary for more technical or complex dispute investigation.

Practitioners who deal in the various specialist areas are familiar with the Protocols which apply to pre-action conduct. To the extent there is no specific Protocol, the Practice Direction is applied. The CPR has now been existence for several years and practitioners are fully familiar with the concept of pre-action conduct and its requirements. For all these reasons, we see no need for the investment of time and work required to create a consolidated Protocol. The Association is comfortable with the current situation and would prefer retention of the status quo.

The production of a single Protocol is likely not to simplify the procedure, the paperwork or a users' understanding of how it operates but instead to further complicate matters. At present, both practitioners and litigants in person can turn to one document in a particular area of law e.g. the Personal Injury Protocol, which contains all the necessary material for that issue and that dispute. Under this proposal there will be a common Protocol, two schedules and appendices. There is therefore far greater room for error and misunderstanding not only on the part of practitioners but more importantly on the part of litigants in person who we believe will find it far harder to navigate round and much more complex document with a variety of different appendices to be chosen in different instances.

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 the in the personal injury Protocol for example)?

A consolidated Protocol which attaches precedent letters or templates would become incredibly large and unwieldy. Also, there is scope for mistake, particularly amongst those less familiar with the workings of a specialist pre-action procedure, if a variety of different letters, templates or precedents were attached to a Protocol. We think in particular of consumers or general practitioners. Our preference would be for there not to be sample letters or templates attached. General guidance should be sufficient.

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? 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 to aid the effectiveness of that Protocol.

It is agreed that there is logic to the removal from Protocols of unnecessary annexes such as that referred to above.

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 with from the inclusion of sanctions to assist in dealing with parties who fail to fulfil the requirements of the Protocol.

It is the Association’s view that a balance should be struck in the application of sanctions. The requirements for compliance with a Protocol should be viewed in the round, assessing the complexity of the dispute, proportionality as to value of the claim and reasonableness. If, however, after consideration of such matters, a party acts in blatant disregard of a Protocol, then sanctions should be applied. The sanctions could take the form of an adverse costs Order by the Court on application of another party to the action, so that evidence can be tendered and the matter considered carefully prior to such sanctions being awarded.

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

None of which we are aware.

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

There are a number of areas which would undoubtedly benefit from subject specific requirements or a subject specific Protocol. For example, mortgage repossessions may benefit from some form of Protocol.

7. Do you have any other comments?

The Pre-Action Protocol concept has proved extremely valuable. The Protocols and the overriding Protocol Practice Direction as drafted have had and continue to have the beneficial effect of substantially reducing litigation. They are achieving their purpose in their current form. Why change something which is working well?