PRE-ACTION PROTOCOLSPersonal injuryThe pre-action protocols launched on 23 July 1998 by the Lord Chancellor's Department (LCD), the Law Society and the Clinical Disputes Forum, are an important part of the reforms.

Lord Woolf, during his injury, fostered the spirit of co-operation and his team began work on the first of the protocols, for lower value personal injury claims.

The Law Society's civil litigation committee continued that work after the publication of Lord Woolf's final report.

It reconvened the personal injury protocol working group, which included representatives of the Association of Personal Injury Lawyers, the Forum of Insurance Lawyers, the Association of British Insurers and of the insurance industry.Clinical negligenceThe Law Society has also contributed actively to the work on a second protocol: for clinical negligence claims.

This has been one of the first initiatives of the Clinical Disputes Forum -- an independent body set up to provide a focus for new thinking in this traditionally polarised area of disputes.

The members of the forum represent a broad range of interests including healthcare professionals, NHS management, patients, experts, lawyers specialising in claimant and defendant work, and the medical defence associations.

The clinical negligence protocol has been developed by a working group of the forum, in consultation with the forum members and other organisations.The aim of the protocolsMany clients involved in personal injury and clinical negligence claims, both the individuals who are the claimants, and the organisations who tend to be the defendants, want claims settled both quickly and economically.

The protocols, which embrace Lord Woolf's less adversarial culture, should greatly assist.

This does not mean that practitioners will not continue to take important cases into litigation and through to trial, but in future, increasingly, they should be doing so selectively and consciously when the case merits it and the client wants it.What the protocols sayThe protocols are intended to improve pre-action contact between the parties, and to facilitate better exchange of information and fuller investigation of a claim at an earlier stage.

They will set clear standards of best practice.

The two protocols both advocate:-- the claimant sending a reasonably detailed letter of claim to the proposed defendant, which includes details of the accident/medical treatment, a brief explanation of why the defendant is being held responsible, a description of the injury and at least an outline of the claimant's losses;-- the defendant should acknowledge the letter within 21 days and advise the claimant dealing with the matter.

The defendant then has a maximum of three months to investigate and tell the claimant whether liability is admitted.

If it is denied, reasons must be given;-- within that three-month period, or on denial of liability, the parties should organise disclosure of key documents.

For personal injury claims the protocol lists the main types of defendant's documents for different types of cases.

In clinical negligence claims the key documents will usually be the claimant's medical records and the protocol includes a pro-forma application to obtain these;-- the personal injury protocol also provides a framework for the parties to try to agree on expert evidence, particularly a condition and prognosis report from a medical expert.

The aim is for the claimant to obtain the defendant's consent to one report being prepared by an agreed non-partisan expert.

The clinical negligen ce protocol more generally encourages the parties to consider sharing expert evidence, particularly with regard to quantum;-- both protocols encourage the parties to consider settlement pre-action by negotiation or ADR.The role of the courtsThe protocols are likely to be annexed to the new rules and practice directions, and the courts will be given specific powers to enforce compliance with the protocols.

At the stage of allocation to track when a defence is filed, parties will be asked whether they have complied with a relevant protocol and if not, why not, and the court will take the answers into account when deciding whether applications for extensions of time, for example, for service of a statement of case, or other evidence are justified.

The court will also have costs sanctions at its disposal: perhaps the power to disallow the costs of issue of proceedings, or of unreasonably obtaining and not sharing expert evidence.

In fact, in the last few years, the courts have already been applying these principles.What practitioners should doMany solicitors already embrace the less adversarial culture and observe the type of best practice which the protocols advocate.

Giving the other side ample notice of a potential claim, spelling out the basis of that claim, and at least in outline the potential damages and co-operating with the other side in assembling the evidence and discussing a potential settlement before proceedings are issued, is the day-to-day practice of many solicitors involved in personal injury and medical negligence claims.It will be important for all solicitors who handle personal injury and medical negligence claims to obtain copies of the protocols and to put them into operation before the civil justice reforms are implemented next year.

The protocols are codes of best practice, not binding procedures or rules and regulations to be followed to the letter.How to obtain copies of the protocolsThe personal injury and clinical negligence protocols were published by the (LCD) on 23 July.

Copies are being sent by the Law Society to all firms listed as carrying out personal injury and clinical negligence work, and by the Association of Personal Injury Lawyers to members.

The text will also shortly be available on the LCD Web site (www.open.gov.uk/lcd) and the Law Society Web site (http://www.lawsociety.org.uk).

Hard copies can be obtained by sending a stamped addressed or DX addressed envelope to: Practice Advice Service, The Law Society, 113 Chancery Lane, London WC2A 1PL; DX 56 London/Chancery LaneWhat nextThe two protocols already published are not set in tablets of stone.

The clinical negligence protocol has already been the subject of widespread consultation, and the personal injury protocol is being piloted by a volunteer group of solicitors and insurers.

The working parties responsible for the protocols will continue to meet, and the personal injury protocol in particular may need some fine tuning following the evaluation of the pilot this autumn.These two protocols may just be the beginning.

Work began during Lord Woolf's inquiry on a housing protocol.

As this, too, can be a confrontational area of litigation, it would be good news if work on this protocol could resume.

Debt is another common area of litigation and the Law Society has already offered to develop a protocol in this area linked to the current review of enforcement procedures.CIVIL JUSTICE REFORMS: FULL STEAM AHEAD FOR APRIL 1999The reform timetableThe alliance of Lord Woolf and Lord Irvine, has made it crystal clear that it is determined to implement the main civil justice reforms next April.

The Brown Book Mark II Rules, the related practice directions, new court forms and some pre-action protocols should be completed by November 1998, laid before Parliament in December for approval and published in January 1999.

But the following will be phased in later 'as a rolling programme':-- the remainder of the current rules which have yet to be re-drafted;-- the rules for specific types of litigation -- multi-party actions, medical negligence, housing, judicial review -- and for the specialist jurisdictions;-- the case management IT in the courts.It is also clear that no more resources are being found for the reforms, except for training the judges.Other newsThe small claims limit will increase to £5,000 next April, except for personal injury and housing claims.

The Law Society scored a significant success in persuading the government to exclude housing disrepair of more than £1,000, illegal eviction and harassment claims from the small claims court.The fast track limit will be £15,000 and may include fixed recoverable costs at least for advocacy at trial.

From next April only claims in excess of £15,000 can be issued in the Royal Courts of Justice: this limit may increase to £50,000 later.

Applications to move claims up a track based on grounds of complexity, must be made on the new allocation questionnaire.The transitional arrangements remain to be finalised.

The likelihood is that the new rules will apply in their entirety to cases issued after next April, and some of the rules will also apply to cases already in the system.

There will be a long stop date by which all cases should be brought under the new rules.The personal injury and clinical negligence protocols have now been published by the LCD.

Copies are being made available and will appear on the Law Society Web site: http//www.lawsociety.org.uk.What the Law Society has been doingFor some months the Society has been trying to persuade the government to allow more time for implementing the reforms.

It was suggested that a January 2000 start date would give everyone, including the courts, more time to get ready.

But the civil servants and Lord Irvine failed to be persuaded, so the Society raised its concerns more publicly in the short debate on the Civil Procedure Rules in the House of Lords on 29 July.What the profession should doWith less than nine months to go, firms should:-- obtain a copy of the draft rules and protocols.

The rules are on the LCD Web site (www.open.gov.uk/lcd), a hard copy can be obtained from the rule committee secretariat at: Lord Chancellor's Department, Selborne House, 54-60 Victoria Street, London SW1E 6QB-- ensure that they are on the LCD mailing list for bulletins and consultation papers: contact Jillian Kay at Selborne House; tel: 0171 210 8654;-- plan any changes to litigation practices, particularly to ensure compliance with the intended small claims and fast track 30-week timetables;-- ensure that all litigators are trained on the new procedures and rules.

The Law Society is organising two series of roadshows.-- consider inviting a Law Society speaker to local seminars.

Contact Suzanne Burn; tel: 0171-320 5739 (email: suzanne.burn@lawsociety.org.uk);-- ask at the local court or trial centre what is planned for next spring: the third phase of the judges' training on the reforms should include discussions with practitioners;-- attend the Solicitors Annual Conference at Bournemouth on 23 October where a session will focus on the fa st track.