Protocols are no fishermens' friend

District Judge Susan Spencer explains why life for anglers is more difficult these days

'I remember when litigation was litigation, and you could have a real paper trail,' quavers the old lawyer to the new trainee.

'Now, with all these newfangled protocols and rules, there are no fishing expeditions.

What is the world coming to?'

Civil matters

The world, in fact, caught on quickly to the reality of no more 'further and better particulars'.

There should be no need for part 18 of the Civil Procedure Rules 1998 (CPR) to be utilised where a pre-action protocol is in place, and has been followed, so as to provide 'sufficient information' to allow the insurer to 'commence investigation' and make at least a 'broad assessment' of risk (personal injury protocol), and the statements of case have complied with part 16 for the particulars of claim (rule 16.4) and defence (rule 16.5).

The court has a duty to case-manage actively under part 1 of the CPR.

It will, at allocation stage, identify the issues, and if need be, request a party to provide further information to assist in this process.

This can be done under rules 18.1 or 26.5(3).

The parties have a duty throughout to assist the court in carrying through the overriding objective (rule 1.3), to which efficient case management is vital.

However, part 18 of the CPR is primarily of use to parties who wish to ask each other for more information.

The request must first be made in correspondence.

It is not limited to matters already referred to in a statement of case, but it must relate to a matter in issue in the proceedings, for example, something which appears from the witness statements, but was not put in the statement of case.

The request may be made at any stage, and a response ordered by the court must be verified by a statement of truth (CPR part 22).

The part 18 practice direction deals with the form of the request, the response and the form of the application to the court.

It is not for the receiving party to the part 18 request to make any application to the court if he objects to complying with it (practice direction 18.4), but for the requesting party to apply, having had the initial request refused or ignored.

Pursuant to the overriding objective, the courts will not allow part 18 to be used as the weapon of oppression that 'further and betters' sometimes were.

Under the CPR, statements of case are fuller, and much disclosure of both information and documents has taken place pre-action either in accordance with a protocol or on an informal basis.

In McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 at 793, Lord Woolf set out how he saw statements of case and particulars developing under the CPR.

'The need for extensive pleadings, including particulars, should be reduced by the requirement that witness statements are now exchanged.

In the majority of proceedings, identification of the documents upon which a party relies, together with copies of that party's witness statements, will make the detail of the nature of the case the other side has to meet obvious.

This reduces the need for particulars in order to avoid being taken by surprise.'

He saw a continuing need for clear statements of case marking the parameters of the case, but added: 'Unless there was some obvious purpose to be served by fighting over the precise terms of the pleadings, contests over their terms are to be discouraged.'

After witness statements

Is it appropriate for the parties themselves to employ part 18? Perhaps, but not generally before exchange of witness statements.

Indeed, the court's proper response to an early part 18 request might be to give 'own initiative' directions for disclosure and witness statements, and order a combined case management conference/part 18 hearing on a later date.

The parties could then reconsider the need for the part 18 request in the light of full exchange of information as ordered by the court.

This approach, especially in a fast-track case, could be the most proportionate one.

But if a party wishes to apply under part 24, and can demonstrate to the court that the information on a particular point is necessary before the application can be properly assessed and that a part 24 application has a good prospect of succeeding in disposing of at least a substantial issue, the position may well be reversed.

To order further information early, and thereby save the expense of formal disclosure and exchange of witness statements may well be the proper response.

Family matters

Here the overriding objective arrived a little later, but the intention of reducing the paper trail is the same.

The rules are contained in rule 2.61A-F of the Family Proceedings Rules 1991 (FPR).

There is in addition to the president's direction of 25 May 2000 containing a pre-action protocol, the family law protocol of the Law Society, and the Solicitors Family Law association Good Practice Guide for Disclosure.

If the parties act in accordance with the strictures contained in those documents, then prior to proceedings, each party will have disclosed at least the minimum required by form E (president's protocol 3.5), plus any items relating to issues particular to the case on a full and frank basis (president's protocol 2.7 and Law Society protocol part IV 2.7, 3.1 and 6.1).

There must not be disproportionate disclosure, though it is likely in the post White era that the millionaire's defence will not be allowed to limit disclosure.

Once the matter is before the court by the issue of form A, rule 2.61B of the FPR prohibits any disclosure or inspection being requested or given between the issue of form A and the first appointment.

Parties must file their questionnaires in good time for the first appointment and the judge, at that hearing, will decide which questions should be answered, and by whom and in what timescale.

Gone are the days of repeated lengthy questions fishing for information about bank statements from ten years ago, the make of the cohabitee's car or (in one memorable case) the location of a jet ski.

The questions asked must relate to the statement of issues filed for the first appointment (FPR rule 2.61B(7)).

Those which do not so relate will not be allowed.

The nub

This last point in fact is the nub of the issue, be it in the context of family or civil matters.

For the court faced with a request for further information, the question is: 'Will the answer to this question narrow or dispose of an issue immediately, or inform the court better on an issue to be decided at a later date and will the provision or the refusal of this information best promote the overriding objective?'

District Judge Susan Spencer sits at Leeds Combined Court