“Litigation is the process of engaging in legal action in court as a means of resolving a dispute. The court is able to enforce or determine one party’s rights or obligations”.

Pre-action Protocols in Civil Litigation

The protocols in general 
Civil Litigation provides for cases to be dealt with as quickly, efficiently and with as little expense as possible. There are now approved protocols which clearly define the steps the parties should take on their way of commencing proceedings. Amongst others those provide for early disclosure of documents and information. 

The most essential role of disclosure of one party’s documents is to show the other side the case they have to meet in the event of the case proceeding to court. It also allows parties to prepare and eliminate the need for proceedings at the earliest stage possible by settling; if in their view they do not have a successful case. The same principle applies to claimants, who can for example choose not to proceed with a claim on the basis of the other side’s defence.

Overall, pre-action protocols strongly encourage out of court settlements as well as mediation and alternative dispute resolution as means of resolving the case. As a consequence that would result in saving court’s time as well as minimising the expenses of all parties.

The effect of non-compliance

Parties are expected to act reasonably in exchanging information about the claim, defences and counter-claim including relevant documents in support of their case and generally work towards avoiding the necessity for the start of proceedings. It is also imperative to consider the suitability of mediation or another form or dispute resolution to resolve the matter.

However, since the rules are not as strict as for the other areas, non-compliance is harder to prove. Nevertheless, if a party is found to have acted unreasonable, they may be penalised in costs. Non-compliance could be seen in the actions of the claimant as well as the defendant as the protocols prescribe for specific steps to be taken by either party to the proceedings. With regards to claimants those include not giving sufficient information to the defendant. While for the defendant, not making a preliminary response to a letter of claim within the specified time period or not disclosing the relevant documents, could amount to non-compliance.

The powers of the courts

On non-compliance cost penalties and other sanctions are widely available to courts. Further, on subsequent application for extension of the same or other time limit, it could be taken into account by the court. 

Additional powers are available to the courts if it is considered that due to the behaviour of the defaulting party proceedings have been started that might otherwise not needed to be commenced. Further, those could also be used if the court believes non-compliance has led to costs being incurred that might otherwise not have been incurred. 

The court will exercise the powers under these provisions with the object of placing the innocent party in no worse position than they would have been in if the protocol had been complied with. If you need assistance our members can help, please contact us .