Vital protocol

Contrary to your recent article on Callery v Gray (see [2001] Gazette, 26 July, 9), the Court of Appeal did not establish that success fees should drop to as low as 5% 'if the case settles before proceedings'.The court said the reduction in the success fee might be appropriate 'should the claim settle before the end of the protocol period'.

Even if the case has not settled, the court said that 'by the end of the protocol period, both parties should have decided on their positions'.There is often a huge difference, in terms of time and money, especially in bigger and more complex cases, between the end of the protocol period and the start of proceedings.

Much work may need to be done, not just on liability, but also in relation to quantum before the proceedings can be commenced.

Up until now, the protocol has had no real teeth, at least so far as penalties against the defendants are concerned.

It is clear from the judgment that the Court of Appeal was interested in the use of differential success fees to enforce compliance by defendants, and raise the status of the protocol period and thus separate out, at an earlier stage, those cases which have a 'serious defence'.

As the judgment says: 'This knowledge (of higher success fees) would encourage a rigorous consideration of the merits of the claim during the protocol period and therefore accord with the intent of the CPR [civil procedure rules]'.So, defendant lawyers can continue their old policy of keeping open as many issues as possible and conceding nothing, but at a price.

Alternatively, they can narrow the issues quickly, concede sensibly and pay less, overall, by way of a success fee.

The increased significance of the protocol period is central to this part of the judgment.

Frank Patterson, Leigh Day & Co, Manchester