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http://www.dca.gov.uk/civil/final/contents.htm
ACCESS TO JUSTICE
(1) breaches of fiduciary duties
(2) MILD BRAIN INJURY
(3) (a) Driving and forgetting where she is going to.
Chapter 10 Pre-action Protocols. 4. Delay before the start of proceedings is just as undesirable (and can be just as expensive) as delay in the course of litigation. There would be no point in offering a fast track timetable of 20 or 30 weeks to a claimant who had spent two or three years in fruitless negotiations before bringing the case to court at all. What is needed is a system which enables the parties to a dispute to embark on meaningful negotiation as soon as the possibility of litigation is identified, and ensures that as early as possible they have the relevant information to define their claims and make realistic offers to settle. 6. Protocols will also be an important means of promoting economy in the use of expert evidence, observance of the protocols should put the parties in a good position to meet the timetable imposed by the court. 7. Work is already well advanced on the development of protocols for some areas of litigation which particularly concern the Inquiry. The Law Society has played a particularly important role in work on pre-litigation procedures, both by helping the Inquiry directly and through independent initiatives such as its protocol for the disclosure of medical records. 9.The group has also been able to agree a protocol for instructing experts which provides that the claimant's solicitor may, in the first instance, put forward more than one expert's name. The defendant may indicate that one or more of these is unacceptable. The group considered that this would have advantages for both claimants and defendants. Provided at least two names are acceptable to both parties, the claimant may reject a report by the expert of his first choice without letting the defendant know that he has done so. The advantage for defendants is that they can identify at an early stage if the claimant is intending to use an expert whom they regard as partisan and whose report they are unlikely to accept. 14. It is important that protocols are devised within a general structure of court approval. The Civil Justice Council will have a significant role to play here in advising and assisting the Head of Civil Justice. When a protocol is established for an area of litigation, I recommend that it is incorporated in the relevant practice guide. Unreasonable failure by either party to comply with the relevant protocol will be taken into account by the court, for example in the allocation of costs or in considering any application for an extension of the timetable. 15. I am aware that there is some scepticism as to whether insurance companies will comply with the protocols. My discussions with insurers, and their co-operation (led by the ABI) in the development of protocols, do not support this. I have no reason to think that the industry leaders will not honour the protocols. It will, in any event, be in their interest to do so if they wish to avoid the sanctions that will be imposed, if necessary, by the courts. Recommendations
(4) My recommendations on protocols are as follows. (2) When a protocol is established for a particular area of litigation, it should be incorporated into the relevant practice guide. (3) Unreasonable failure by either party to comply with the relevant protocol should be taken into account by the court, for example in the allocation of costs or in considering any application for an extension of the timetable.
(5) Chapter 6 Sanctions 2.There was overwhelming support from all sides for effective, appropriate and fair sanctions among those who have commented on my interim report and the issues paper on the fast track. Members of the judiciary saw sanctions as a key element, while recognising that their application must not be allowed to generate additional litigation. Consumers' groups pointed to the need for sanctions which were sufficiently powerful to prevent games playing and oppressive behaviour. As I have commented elsewhere, one of the greatest grievances of litigants in person is the apparent impunity with which practitioners breach procedural orders.
Lord Woolf Again I quote.
"The existing litigation system may allow an untenable case to come to court, several years after the event, in which there has at no stage been any personal contact between the healthcare professionals involved and the injured patient or his family. That simply should not happen…."
Chapter 10 Pre-action Protocols. 8. Another group, involving members of the Association of Personal Injury Lawyers (APIL) and the Association of British Insurers (ABI), is working on a pre-action protocol for personal injury cases. This started in the context of the Inquiry's work on the fast track, but the approach is relevant to all personal injury work. The main points on which agreement has been reached so far are as follows. (c) Within three months of receiving notification of a claim, the defendant must reply saying whether or not liability is accepted. If it is not, the defendant must give factual reasons for disputing liability and send copies of relevant documents
46. Disbursements, including court fees, will be recoverable in addition to the fixed costs. It has been suggested that this might encourage solicitors to use solicitor agents or non-solicitors for work for which payment is included in the fixed costs and then claim the cost as a disbursement, thereby obtaining double-payment. Examples that have been given are where accountants are instructed to carry out simple mathematical calculations within a solicitor's competence, or where enquiry agents are used to interview witnesses. Disbursements will be subject to scrutiny by the court to ensure that any such claims are disallowed.
47. In order to assist in determining the disbursements to be allowed, each party should, at the end of the case, submit a form to the court setting out all disbursements incurred and attaching relevant vouchers. This may then be challenged.
51. It is of particular importance in reducing the cost of lower value cases that there should, in the main, be no interlocutory hearings. Pre-action protocols, informative claims and detailed defences all have a part to play in making this possible. There may, however, be occasional cases where an interlocutory hearing is necessary, such as where there is an application for extension of the timetable or for relief from a sanction. Because the circumstances will vary, I recommend that the district judge should make a costs order in each individual case and that, if the hearing was occasioned by the default of a party, that party should normally pay the costs forthwith. Such costs orders will be separate from the fixed fee. In such cases, if for example a solicitor has not adhered to the timetable and as a result has to appear before the court, the client should be informed about the costs order against him so that he can apply for a wasted costs order against his solicitor if the solicitor was at fault.
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