PRE-ACTION PROTOCOL IN CIVIL PROCEEDINGS IN ENGLAND AND KAZAKHSTAN: A COMPARATIVE ANALYSIS
DOI:
https://doi.org/10.52026/2788-5291_2022_71_4_268Keywords:
civil procedure, disclosure of documents, common law, pre-action disclosure, evidence, list of documentsAbstract
The present study aims to explore the problems of pre-action protocol as one of the aspects of evidence disclosure in civil proceedings in Kazakhstan. The article attempts to highlight theoretical ideas about the pre-action protocol and its correlation with the disclosure of documents in England. Using the method of comparative analysis, the author reveals the essence and importance of the pre-action protocol in English civil proceedings, noting that the pre-action protocol is not used to formalize disclosed documents in English proceedings, but the term "list of documents" is used. To highlight the problematic issues of the practical application of the pre-action protocol, the data of a sociological survey is used. In the author's opinion, the lack of clear legal regulation of the procedure for disclosure, the incorrect use of the term "pre-action protocol," the lack of liability for failure to fulfill the obligation to disclose documents, served as the reasons for the formation of a predominantly skeptical attitude to the pre-action protocol and to the disclosure general. It is recommended to abandon the term pre-action protocol, due to the inconsistency of its functions in the civil process of Kazakhstan with the goals and objectives laid down for it in English law. The term "list of documents" by analogy with the rules of civil proceedings in England has been proposed as a substitute. The author expresses the hope for legislative correction of existing gaps in the regulation of certain elements of evidence disclosure, such as the pre-action record, which would ensure the full and effective functioning of evidence disclosure in civil proceedings in Kazakhstan.