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Lawyers have raised concerns about the workability of pre-action protocols in judicial review (JR) applications due to be introduced next month
The move to bring in the new pre-action protocol arose out of Sir Jeffrey Bowman's 2000 review of the Crown Office List, which revealed that 54 per cent of all JR claims settle at some stage before the substantive hearing. There have also been concerns that a significant proportion of JR claims are refused leave to proceed. Pre-action protocols are designed to reduce cost and delay in civil proceedings by producing a 'letter before claim', stating such matters as the summary of facts, disclosure of evidence and interested parties. This occurs before any court action starts. The JR protocol will be introduced on 4 March. Concerns have been raised because of the strict time limits imposed when preparing a JR claim. Under the existing Civil Procedure Rules, claimants are obliged to react 'promptly' when bringing a claim. The definition of 'promptly' is given as up to three months. However, the new protocol rules deny lawyers any time extension, despite facing the much greater time burden when bringing a case because of the requirement to issue a letter before claim and receive a reply within the three-month limit. Richard Spafford, commercial litigation team head at Barlow Lyde & Gilbert, said: "These practical concerns in complying with the protocol will affect their clients' ability to bring proceedings." He added: "All this arose out of a high proportion of JR cases not getting past the leave-to-apply stage, so it was considered that there were a lot of hopeless applications being sought. Many others were settling before the substantive hearing to avoid clogging up the courts' time." The incorporation of JRs into the pre-action protocol system is the first stage in the widening of the existing protocols in five practice areas - professional negligence, clinical disputes, defamation, construction and engineering, and personal injury claims - to cover all disputes. The Lord Chancellor's Department is considering the results of a recent consultation into this.