The most frequently asked question at Lord Woolf's roadshows was: 'Why do we have to bring a civil action to trial more quickly when most cases settle?' The most frequently expressed judicial complaint: 'How can I try this action when the witnesses can't remember anything because it all happened years ago?'Lord Woolf recognises that negotiation is a vital aspect of litigation.

The pre-action protocols, where they apply, will give direction signs.If lawyers follow the protocols, they will know even before they issue proceedings, most of the evidence that the court will hear at the trial.The new civil procedure rules are clear.

Once proceedings have been started, the court will be under a duty to bring the claim to a resolution as soon as is just.

The personal injury protocol has understandably received priority.Personal injury claims use up a disproportionate share of court resources.

The work is principally undertaken by a relatively small community of specialist solicitors financed by insurers for plaintiffs and defendants with a common interest in controlling their administrative expenses.Who's afraid of the joint expert?The personal injury protocol contains a procedure to identify any necessary expert witnesses.

In smaller claims - those that will be allocated to the fast track - it is quite rare for the defendant's insurer to ask for its own medical report and this fact is reflected in the protocol.The claimant must consult with the defendant to identify the medical expert.

The future engagement of all experts will depend on a reputation for impartiality.At recent directions hearings, I have suggested the appointment of a joint expert to the legal representatives.

On no occasion has the suggestion been rejected.

I am always told there will be no difficulty in identifying the expert or agreeing the fee.What's in a protocol for me?The protocols will succeed if they enable more claims to settle before the issue of proceedings.This is what will happen if lawyers follow the personal injury protocol.

Solicitors will send or receive a standard letter with a summary of the factors that support the claim and indicate the injuries and financial loss.

The defendant has up to three months to reply.If the defendant denies liability, the claimant will serve a schedule of losses with copies of the supporting documents.

Once the parties have agreed on an expert whom they both trust, they will write a joint letter or separate letters of instructions for the preparation of a report for use of the court.If, in the event, proceedings are issued, the only remaining preparing steps will be the exchange of the witnesses' statements and the filing of the listing questionnaire.

The lawyers will have disclosed the relevant documents pre-issue.The fast track timetable will not embarrass either party when there is a single expert's report and the expert witnesses' 'unavailable date' problem will disappear.Let sanction fit the timeNeither the new rules nor the practice directions contain any automatic sanction against failure to observe a pre-action protocol.This should not be seen as a lacuna.

A sanction suited to a small claim may not be suited to a larger one.

If a solicitor acts for the claimant in a fast-track claim and the defendant ignores the protocol, the consequence may be that the court refuses to relax the 30-week timetable.

This could make the collection of the defendant's evidence more difficult because the defendant has lost the chance to ask for additional details about the claim.

And the defendant may have insufficient time to obtain a separate expert's report even if the court would allow it.Such a scenario may be unjust in a larger claim notwithstanding that the defendant's handicap has been self inflicted.

A case management appointment may be necessary with an adverse costs order although such an order may not unduly concern most commercial defendants.Let us go back to the over-riding objective and the court's case management powers.

If it is otherwise just to do so, the court may back the timetable with sanctions to ensure that any additional delay will cause the defence to be struck out.

The claimant will not be saddled with making time consuming applications for 'unless orders'.The burden of applying to the court to extend the time for taking any step in the timetable or for relief against a sanction will be transferred to the defendant.

On the application, the court will take into account any failure to comply with the protocol.And the claimant tooWhat if the claimant has failed to carry out the protocol? Say, the claimant issues the claim close to the end of the limitation period and without warning.

At the very least, the defendant must be given an adequate extension of time to file the defence so that a proper investigation of the claim can be undertaken.What if the defendant was not consulted about the appointment of an expert to prepare a report? The court could refuse the claimant permission to call the separately instructed expert and could order an additional report to be prepared on the parties' joint instructions.

The fees of the first expert would have been thrown away and could never be recovered from the defendant.Do not under-rate the fast-track and multi-track practice directions which will be introduced stating that the court 'will not allow failure to comply with directions to lead to postponement of the trial unless the circumstances are exceptional'.

The judgment in Mortgage Corporation v Sandoes (1996) The Times 27 December CA has found its way into the practice directions.Calderbank interest and costsWhether s olicitors act for the claimant or the defendant, they will be able to make an offer to settle before proceedings are begun and in relation to both money and non-money claims.

Include a provision for the payment of the claimant's costs if the offer is made before proceedings.What is most interesting is the effect of a claimant's offer to settle.

If at the trial the defendant fails to beat the offer, the court will be empowered to order interest on the award at up to 10% above base rate and, on top of that, order indemnity costs plus the higher rate of interest on those costs.

But there is a snag.

The court will exercise its powers unless it considers it unjust to do so.The checklist of matters for the court to consider includes the 'information available to the parties at the time when the offer was made' and 'the conduct of the parties with regard to the giving or refusing to give information'.