Pre-action protocols are one of Lord Woolf's greatest achievements.

During his inquiry he had the ingenious idea of bringing different types of lawyers together and asking them to develop guidelines on how to communicate better.

The notion caught on, a personal injury working party was set up, and in July this year they published a draft protocol to apply to potential fast track claims under £15,000.

(Lord Chancellor's Department, Pre-Action Protocol for Personal injury Claims, Draft July 1998).It is currently being piloted, with the idea that it should become standard practice nationally when the Woolf reforms are introduced in April 1999.

Lord Irvine has described the protocol as the "first serious attempt to set effective and enforceable standards for the efficient conduct of pre-action litigation".

(Above, Forward, p ii).

The hope is that by improving early communication between claimant lawyers and insurance companies, cases can be settled more quickly, cheaply and fairly.This sounds like an excellent idea.

But one thing we know about improving civil litigation is that it is not easy.

(On this theme, see G Watson, "From an adversarial to a managed system of litigation" in (ed) Smith Achieving Civil Justice, Legal Action Group 1996).

So will practitioners comply with the new guidelines? And will they do so in a spirit of goodwill? Or will the protocol requirements become yet another thing to argue and litigate about? The pilot evaluation will answer some of these questions, and time will no doubt answer the rest.

Meanwhile, the fast-track "hypothetical case studies" commissioned by the Lord Chancellor's Department shed some useful light on how lawyers may react.

(T Goriely F Bull and A Sherr, Costing Fast Track Procedures through Hypothetical Studies, Lord Chancellor's Department Research Series No 4/98, June 1998).The idea of hypothetical studies came from Lord Woolf himself.

He suggested that, before deciding on fixed costs, the Department should ask lawyers and judges to work through examples based on real cases to test out the fast track procedure.

In September 1997, the Institute of Advanced Legal Studies held six "role-playing events".

We developed typical case studies based on real files.

We then invited plaintiff and defendant solicitors, claims managers and judges to spend a day talking through their approaches to the fast track, and simulating correspondence and negotiations.

Four events looked at personal injury work, two at road traffic cases and two at employers' liability.

We also ran two events on contract claims.

Our principal aim was to find out how long solicitors would take to run cases, but we also explored how people would react to the new procedures.

We were keen to highlight areas of difficulty or ways in which lawyers could circumvent the intention of the reforms.We found considerable support for pre-action protocols among judges and solicitors on both sides of the divide.

People deplored the habit of issuing first, talking later and they agreed that it would be better to exchange more information earlier.

They also valued clear guidelines.

At the contract role-plays, solicitors felt disadvantaged by the absence of protocols to deal with contract issues.

The result was considerable confusion about how far creditors should simply sue on an invoice -- on the grounds that a quick summons would produce a quick cheque -- and how far the Woolf reforms required solicitors to explore areas of disagreement first.So the general message for pre-action protocols was positive.

That said there were problems.

The issues are best explored by looking at three of the major changes introduced in the protocol -- the letter of claim, the defendant's three month response and using a single medical expert.THE LETTER OF CLAIMThe protocol requires plaintiff solicitors (or, as they are now called, "claimant" solicitors) to send the proposed defendant two copies of a letter of claim.

This must be sent "immediately sufficient information is available to substantiate a realistic claim and before issues of quantum are addressed in detail".

(Protocol para 2.1).

The protocol states that:"The letter shall contain a clear summary of the facts on which the claim is based together with an indication of the nature of any injuries suffered and of any financial loss incurred .

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Sufficient information must be given in order to enable the defendant's insurer/solicitor to commence investigations and at least put a broad valuation on the risk." (Above, paras 2.1 and 2.6).Everyone agreed that this represents a substantial departure from the short, uninformative letters before action plaintiff solicitors currently send.

As one solicitor said, "I would normally fire off a very short, very bland letter".

For the defendants, detailed letters represented a major improvement.

With an idea of the sort of money involved, they felt better able to judge how much time and effort to put into the investigation and how far to contest liability.

Claimant solicitors agreed that, in theory, it was a good idea to send such information.

In practice, however, most said that they would only be happy to send such a detailed letter at a late stage, once their investigations were complete.Out of our four pers onal injury events, only one claimant group -- the specialist employers' liability solicitors -- were happy to send a new style letter of claim after the first interview.

One group expressed strong reservations while the other two refused to send the protocol letter we had drafted until after they had received the police report and interviewed witnesses.

This was not, as defendants sometimes thought, a calculated plot to ambush their opponents.

Nor did it relate to specific worries about the cases in front of them.

Rather it arose out of a generalised fear of making any statement that might be held against them at a later date.

As one solicitor said:"The new letter of claim is going to be almost the equivalent of a pleading.

If you get it wrong, it is going to be put to your client in the witness box .

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This letter has got to be 100 per cent accurate."Claimant solicitors discussed whether, if they delay sending the letter of claim for several months, they should send the defendant an initial letter, just to say that they were acting."I think there is a call for a pre-letter -- we've been instructed, we're going to sue you .

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Exactly like we do at the moment."Many people supported this nifty return to current practice.

Others, however, thought that it might be more in accord with the protocol to say nothing at all until their investigations were completed -- even though this would delay discussions about which doctor to instruct.Defendants saw little value in a letter of claim if it were not sent until full investigations were complete, and they were particularly angry at the idea that they might not be contacted at all during this time.

As one claims manager explained, in most small cases his firm no longer carried out any investigation until they were notified of a claim.

Delay would prejudice their investigation because witnesses and evidence would disappear.

Defendants worried that claimants might be "quietly beavering away" collecting evidence so as to spring a claim on them years after the accident.Unless claimants' solicitors are prepared to write a detailed letter at an early stage of the case, the advantages of the letter of claim will be lost.

We need to find a way of overcoming solicitors' fears of committing themselves after the first interview.

The protocol makes a first step in this direction by stating that:"Letters of claim are not intended to have the same formal status as a pleading or any sanction to apply if the letter of claim and any subsequent statement of claim differ." (Protocol, para 2.6).This message will need to be reinforced, both by judges and through training.DEFENDANTS' THREE MONTHRESPONSEThe protocol requires insurers to reply to a letter of claim within three months, "stating whether liability is denied, and if so, giving reasons for their denial of liability".

(Protocol, para 2.8).Claimant solicitors regard this as a significant step forward from current practice, which they felt relied on prevarication.

Defendants also said that they were happy with the arrangements.

They told us that three months would usually be long enough, though problems might arise where the police were considering prosecution and a report was unavailable.In the role-plays, however, the defendants also demonstrated a split between what they said and what they did.

In only one event did the defendants send a reply admitting liability.

In the other three, defendants neither admitted liability nor gave reasons for denying it.

Instead, they said they were prepared to negotiate.

Thus in one group the de fendant agreed that if the case ended up in court "we'll lose".

They then discussed whether to make an outright concession or to "string it along a bit".

They thought it dangerous to concede liability before they had seen the medical report.

If it turned out to be a major claim they would have lost the right to argue the couple of points in their favour.

However, in a small claim, they did not think it worth actively pursuing these.

Thus they decided to write back on a without prejudice basis saying that they were prepared to negotiate.A second group went through a similar reasoning process, arguing that "if quantum suddenly goes higher, we may want to make further investigations on liability".

Their letter said only that they were "prepared to negotiate, but not on a full liability basis".

The claimants responded angrily that they had no idea on the basis of the defendant's allegation of contributory negligence, or whether it amounted to 10 per cent or 50 per cent.

They thought it much too near current practice:"We have all been through this, haven't we? They put us through an enormous amount of work and they are difficult and slow and make us work our socks off, and when they get to court they say OK, let's talk about contrib."Claimant solicitors worried that, given current case law, (See Gale v Superdrug Stores PLC, The Times, May 2, 1996) they could not rely even on formal admissions.

They would have to carry out their own investigation in any event, preventing much of the anticipated cost savings of an early admission.Since our research the protocol has been amended to include the following statement:"Where liability is admitted, the presumption is that the defendant will be bound by this admission for all claims with a value of up to £15,000." (Protocol 2.9).The hope is that this will allay defendant fears that "quantum might suddenly go up", while allowing claimant solicitors to trust the admissions they are given.

Again this is a welcome step, but it is likely to take time and effort to change entrenched attitudes.

Defendants would be more prepared to admit formally liability if they saw some positive incentive for doing so in terms of reduced party and party costs.