Pre-action protocols research Note Assessment LAWS4003 PDF

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Summary

Research note assignment
discussion of the state of pre-action protocols in NSW
Exploration of the disadvantages and advantages of PAP
Looks at PAP in other jurisdictions and its results...

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FILENOTE T YPE: Re s e a r c h

DATE: MATT ER:

L AWS4 0 0 3As s e s s me n t 2

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After being advised to undertake ADR methods to attempt to sure settlement, client enquired regarding existence of pre-action protocols in NSW and consequences of commencing a matter without partaking in mediation. Contextual research was conducted and is documented below: PRE-ACTION PROTOCOLS Pre-action protocols (PAPs) are procedural requirements prescribed by legislation or court practice rules as pre-requisites to the commencement of litigation. PAPs are designed to encourage settlement outside of court and create more efficient and cost-effective results for disputes that proceed court. PAPs can include: - The disclosure of relevant documents or information - A requirement of party-to-party correspondence - Participation in forms of alternative dispute resolution - Genuine efforts to settle negotiations and dispute prior to court proceedings.1 DO PRE-ACTION PROTOCOLS EXIST IN NSW? In comparison to jurisdictions such as the United Kingdom, Australia has taken a more lenient approach in outlining and encouraging general pre-litigation steps.2 The Civil Dispute Resolution Act 2011 (Cth) delineates the obligatory genuine steps parties should take in seeking to resolve disputes prior to formal litigation.3 “ The Act is deliberately flexible. What constitutes a 'genuine step' is up to the parties to determine, within the context of their particular dispute. Examples of what might constitute a genuine step include:  notifying the other person of the issues that are in dispute and offering to discuss them with a view to resolving the dispute  providing relevant information and documents to the other person so that they can understand the issues involved and how the dispute might be resolved

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Australian Law Reform Commission, 2010. Discovery in Federal Courts- What are Pre-action Protocols. Australian Government available at https://www.alrc.gov.au/publication/discovery-in-federal-courts-alrc-cp2/5-alternatives-to-discovery/what-are-pre-action-protocols/#_ftn2 2 See Tania Sourdin “Civil Dispute Resolution Obligations: What is Reasonable?” (2012) 35(3) UNSWLJ 3 Civil Dispute Resolution Act 2011 (Cth)

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considering whether the dispute could be resolved by a process facilitated by another person, including an alternative dispute resolution process or attempting to negotiate with the other person, with a view to resolving some or all the issues in dispute.”4

In 2010, amendments to the Civil Procedure Act 2005 (NSW) to establish compulsory prelitigation dispute resolution were postponed monitor effects of “genuine steps” requirements in the Federal Court.5 In September 2012, the provisions were introduced with a more limited application (applying to NSW Local and District Court civil matters and express exclusion of Supreme Court matters from the provisions).6 NSW SUPREME COURT Section 29 of the NSW Supreme Court Practice Note outlines ‘expectations’ of litigations in regards to pre-action protocols: 29. It is expected that prior to the first Directions Hearing the parties’ legal representatives will have discussed the case and will have: (a) narrowed issues and identified any matters of agreement; (b) agreed on suitable interlocutory, directions or arrangements; (c) prepared a draft timetable for the future management of the proceedings; (d) prepared draft short minutes of any orders or directions to be sought at the directions hearing; and (e) discussed the possibility of settling the dispute by ADR. 7 Whilst such actions are not legally required as pre-requisites to the commencement of litigation, they may subsequently be ordered by the court after litigation has formally commenced.8

IMPLEMENTATION OF PRE-ACTION PROTOCOLS 4

Australian Law Reform Commission, Discovery In Federal Courts (Australian Government, 2010) available at: Civil Dispute Resolution Act 2011 | Attorney-General's Department (ag.gov.au) 5 Greg Smith, Attorney-General (NSW), ‘NSW Government to Postpone Pre-Litigation Reform’ (Media Release, 23 August 2011) . 6 See the Civil Procedure Regulation 2012 (NSW). Clause 16 excludes Supreme Court proceedings from the pre-litigation requirements 7 Practice Note No. SC CL 1 Supreme Court Common Law Division - General 8 Ibid.

Arguments for and against the implementation pre-action protocols can be gathered from various studies and recommendations as well anecdotal evidence from the results of the implementation of pre-action protocols in the United Kingdom from 1999 onwards. 9 It seems that, whilst pre-action protocols have good intentions in principle and foster a number of promising results, they still pose a number of issues for courts and their litigants. AFFIRMATIVE ARGUMENTS Reducing the need for, or cost of discovery Various pre-action protocols aim to facilitate settlement by requiring parties to disclose relevant information and document. Even where no resolution is achieved, issues can be narrowed to accelerate the trial process. Further, such protocols should reduce the cost of, and need for discovery in litigation. Encouraging a culture of cooperation Simplification of the claims process may assist in offering a greater level of consistency for litigants, reducing the ‘guess-work’. Further, the prescription of various steps may encourage parties to resolve at an earlier stage. Alternative Dispute Resolution Pre-action protocols can play an important role in encouraging parties to pursue ADR. Where ADR is successful, it saves time and money for the parties involved, and relieves the court of additional claims and burden.10 CONTRADICTORY ARGUMENTS Front-loading of costs In complex cases where the parties are unlikely to reach early settlement, imposing onerous pre-action requirements may only serve to drive up cost and time expenses in the pursuit of resolution.11 Reducing Access to Justice 9

The Civil Procedure Rules 1998 (UK). Australian Law Reform Commission, 2010. Discovery in Federal Courts- What are Pre-action Protocols. Australian Government; I Judge, ‘The Woolf Reforms after Nine Years: is Civil Litigation in the High Court Quicker and Cheaper?’ (Presentation at the Anglo-Australian Lawyers Society), 16 August 2007 at 25 October 2010. 11 See M Legg and D Boniface, ‘Pre-action Protocols in Australia’ (2010) 20 Journal of Judicial Administration 39, 50; Ministry of Justice (UK), Solving Disputes in the County Courts: Creating a Simpler, Quicker and More Proportionate System – A Consultation on Reforming Civil Justice in England and Wales (Stationery Office, 2011). 10

The imposition of a number of pre-action protocols may prevent individuals of low socio-economic status from seeking justice in order to avoid costs. Similarly, if engaged in dispute resolution, these individuals may be pressured into premature or unjust settlement outcomes in order to reduce total costs. It is argued that if pre-action protocols impede an individual’s right of access to the courts, they may be challengeable upon a breach of human rights.12 Opening the battlefield of ‘satellite litigation’ Pre-action protocols may open the courts, and litigants up to the danger of an onslaught of interlocutory applications regarding non-compliance or malpractice.13 Some cases are best dealt with in court. There are some circumstances where court is the best place for litigation to begin and end. Examples of such situations may be when there is a need for the establishment of legal precedent or sending a message to the public, or cases where complex legal issues are in contention.14 SHOULD NSW’S CIVIL DISPUTE RESOLUTION PROCEDURE INCLUDE PRE-ACTION PROTOCOLS? It appears the bespoke approach to the implementation of pre-action protocols in Australia may be best practice. Evidence suggests the implementation of pre-action protocols have the potential to enhance a litigant’s access to justice; however, their use must not be overshadowed by onerous requirements that could inhibit the very same access. Pre-action protocols in NSW Civil Dispute resolution must  Be imposed depending on the circumstances or the case and parties.  Encourage a culture of co-operation.  Deter a battlefield of interlocutory applications.

FOLLOW UP ACTIONS: Contact the client to inform them of the state of pre-action protocols in the Supreme court and reiterate preliminary recommendations of ADR. Inform them of no legal requirement to undertake mediation prior to hearings, but the possibility of court ordered ADR eventuating in the proceedings.

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See Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 109–110. Shelley Greer, "Should Pre-Action Protocols Be Adopted By The New Zealand Civil Justice System?" (2014) 22 Waikato Law Review . 14 Lord Justice Jackson Review of Civil Litigation Costs: Final Report (HMSO, 2009) at 345. 13...