Dispute Resolution: Changes to PD-Protocols

As a mediator and arbitrator I should welcome the following amplification to PD-Protocols:

"The courts increasingly take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still likely. Therefore, the parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. The Legal Services Commission has published a booklet on ‘Alternatives to Court’, CLS Direct information leaflet 23 (www.clsdirect.org.uk/legalhelp/leaflet23.jsp),
which lists a number of organisations that provide alternative dispute resolution services.

The parties may be required by the Court to provide evidence that alternative means of dispute resolution were considered."

My problem is that mediation can add an unwelcome extra layer of costs into the already expensive process. That probably explains why only 3% of CEDR's cases in 2004 concerned IP (see "CEDR Solve mediation statistics 2004" March 2005). That does not mean that there is no place at all for ADR. Some ADR processes work very well. The domain name dispute resolution services offered by the WIPO, Nominet and other service providers offer very good value which is no doubt why they are so popular with the public. The new Patent Office opinion service under s.74A and s.74B of the Patents Act 1977 (as amended) is also taking off nicely.

Some years ago a committee of IP practitioners chaired by Michael Skrein of Richards Butler plus Sir Hugh Laddie put together some really good pre-action protocols for IP litigation. They were put on ice to abide a general pre-action protocol. All that came of that exercise was a few extra sub-paragraphs of para 4 of PD-Protocols. Skrein's protocols have morphed into a Code of Practice for pre-action conduct in intellectual property disputes. I always refer to them whenever I settle a letter of claim or letter of response to a client. Some specialist IP firms from London who ought to know better have tried to put the frighteners on my little high street or suburban clients from the North of England by affecting not to have heard of them. They threaten all sorts of dire consequences unless my chaps give the most outrageous undertakings by yesterday. But I can increasingly inject some steel into their resolve.


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