Risk management

Litigators must move with the timesHave pre-action protocols made you change the way you approach dispute resolution? Or is it business as usual? Do you imagine that the chances of a judge reviewing your pre-action conduct are remote because so many cases settle before issue?Treating the protocols as irrelevant could be a high-risk strategy.

The courts are increasingly prepared to look at pre-action conduct when deciding issues that arise during litigation.

Do you issue and serve at the last possible moment? Do you conduct your case in a heavy handed manner or take unfair advantage of your size and financial strength? Do you raise unnecessary allegations or exaggerate the size of your claim? Do you put your opponents under pressure by setting them unrealistic timescales? These may well be the sort of matters that the court will be prepared to take into account.

In one case, despite winning the day, a firm's pre-action conduct resulted in it only being awarded 40% of its costs.Leaving service until the last minute (or later) is always a dangerous strategy.

This is doubly the case if the claim is old and proceedings are only issued at the eleventh hour.

If there is no evidence on your file of compliance with pre-action protocols and no evidence that the defendants had been made fully aware of basic details about the claim, falling foul of any procedural rules is likely to leave you with little sympathy from the court.It is always possible to find an exception that proves the rule.

In a recent case, a firm served a claim form late because it used the wrong DX number.

It was found not to have taken all reasonable steps to effect service in time.

Nevertheless the court was prepared to put the proceedings back on track.

This was because, despite the complexity of the case, the firm had gone well beyond the requirements of the relevant protocol in providing information to the other side.l Ignoring protocols and using old-style litigation techniques may turn a win into a pyrrhic victory;l Where a case hangs in the balance, non-compliance with protocol practice and procedure is likely to lose you any sympathy that the court may otherwise have had for your position;l Impeccable pre-action conduct may get you out of trouble, but rely on this at your peril.Do follow the spirit of the protocols, even if there is not a dedicated protocol which covers your particular area of specialisation.

You should follow them not only because doing so might get you out of trouble, but also because it is good practice.Do not lose sight of the big picture.

You should not allow the fact that you are following protocol procedures to blind you to looming limitation periods.

Any matter left until the last possible minute is a claim waiting to happen.l This column was prepared by the St.

Paul risk management team.