Civil Justice Council publishes Part 1 of its final report on the Pre-Action Protocols
The Pre-Action Protocols Working Group of the Civil Justice Council (CJC) has published part one of its final report on the Pre-Action Protocols (the “PAPs”).
Background
Following a preliminary survey of views and the creation of a number of subgroups, the CJC commenced a review of PAPs in late 2020. The CJC published its Interim Report in November 2021 and the consultation period closed in January 2022.
The CJC published part one of its final report on PAPs on 23 August 2023. The final report examines the role of PAPs in the civil justice system, the potential benefits of digitalising pre-action processes, and the place and content of the Practice Direction on Pre-action Conduct (the “PD-PAC”).
Key recommendations
The CJC’s recommendations are set out in section 9 of its report and include:
- Formalising the role of PAPs: amending the Overriding Objective to refer to the need for compliance with, and enforcement of, the PAPs.
- Mandatory compliance with the PAPs: making compliance with the PAPs mandatory, but urgent cases, such as where the limitation period is expiring, where urgent injunctions are being sought and where there is a serious risk to the health or welfare of a party without urgent intervention of a court, would be exempt.
- New “General PAP”: replacing the PD-PAC with a new General PAP as a Practice Direction to CPR Part 1 and creating a new PAP for small claims worth £500 or less. Draft text for the general PAP and small claims PAP is set out in Annexes 2 and 3 respectively. The proposed new General PAP includes:
a. A requirement for defendants to provide an acknowledgement of a pre-action letter of claim within 21 days which confirms whether the defendant is the right entity for the claim, the details of any insurer on risk for the claim, and what additional information the defendant needs to provide a full reply to the pre-action letter of claim.
b. The defendant must provide a full response within 90 days of receipt of the pre-action letter of claim.
c. Further guidance on the meaning of “key documents” that must be disclosed by the parties.
d. An obligation to engage in pre-action dispute resolution, with a default obligation to hold a confidential pre-action meeting if the parties cannot agree on an appropriate dispute resolution process.
e. An obligation to complete a joint stock take report setting out the issues on which the parties agree, the issues on which they disagree and the reasons for the disagreement, and the documents of which the parties are still seeking disclosure.
f. Clearer guidance, especially for the benefit of litigants in person, about the role of PAPs in the litigation process, the need to act reasonably and proportionately in engaging with PAPs, and the consequences of failing to do so, including potential criminal consequences for dishonesty.
The report also recommends that the HMCTS and the Ministry of Justice should examine the feasibility of developing a general digital pre-action portal which is limited to the main PAP steps, but which can be linked to relevant existing online general claims portals, including Online Civil Money Claims and Damages Claims Online. Responsibility for governance of pre-action portals should be given to a new Online Procedure Rules Committee, and all pre-action portals should be “workable for both professional court users and litigants in person”.
Comment
The CJC is responsible for making policy recommendations about the operation and future direction of civil justice in England & Wales, including the role of PAPs. However, the CJC is not formally responsible for the drafting of PAPs. This is responsibility of the Civil Procedure Rule Committee (CPRC). The CPRC will decide whether any of the CJC’s recommendations are implemented.
The CJC acknowledged that “a significant number of respondents working in the field of high value commercial litigation raised concerns that the proposed General PAP was too prescriptive, and risked undermining the flexibility in the PD-PAC that was especially valued by those involved in complex commercial litigation”. As a result, the CJC has asked the London Solicitors Litigation Association and Commercial and Chancery Bars to consult with their members and about the need for, and potential content of, a bespoke PAP for complex litigation conducted in the Business and Property Courts. In the words of the CJC, “a bespoke PAP could potentially provide the flexibility needed in high value commercial litigation, whilst still being compatible with the principles underpinning the proposed General Pre-action Protocol”. The second part of the CJC’s review will consider potential reforms to litigation specific PAPs and/or the creation of new litigation specific PAPs, which is welcome.
While any reform that encourages the early settlement of disputes should be embraced, it is also important to avoid unnecessary road blocks to legitimate claims being pursued. The CJC recognise that “there is always a balance to be struck between, on the one hand, flexibility in procedure and a concomitant risk of vagueness as to the steps required of parties, and on the other hand, clear and precise procedural rules that may become overly technical and costly to comply with”.