Pre-action Protocols - Civil Justice Council interim report and consultation – potential reforms

The new Civil Procedure Rules came into force in 1999 and reflected the proposals in Lord Woolf’s report. Pre-action protocols were implemented alongside the CPR for clinical negligence cases and personal injury claims with pre action conduct for all other claims to comply with the overriding objective.

The rules on pre action conduct have been amended over time and there are currently separate pre-action protocols (“PAPs”) in force for 13 categories of case including, for example, construction and engineering disputes and professional negligence claims.  Where a case does not fall into one of these categories, the Practice Direction – pre-action conduct and protocols (the “Practice Direction”) will apply and it explains the conduct and sets out the steps the court would normally expect the parties to take before commencing court proceedings.  Under the Practice Direction the parties are expected to exchange sufficient information to understand the claim, make decisions about how to proceed, try to settle the issues without court proceedings and consider alternative dispute resolution to assist with settlement.

Further potential changes?

The Civil Justice Council (the “CJC”) advises the Lord Chancellor, the judiciary and the Civil Procedure Rule Committee on civil matters.

On 15 November 2021, the CJC published an interim report for consultation on the PAPs and Practice Direction and it suggested the following potential reforms:

• Making all PAPs available online via portals.
• Formally recognising that compliance with PAPs would be mandatory, except in urgent cases where immediate court intervention is necessary.
• Introducing a good faith obligation to try to resolve or narrow the dispute at the pre-action stage.
• Introducing a requirement to complete a joint stocktake report/list of issues as a final step before the start of proceedings.
• Introducing a summary costs procedure, independent of Part 8, for costs liability and quantum disputes for cases that are resolved at a PAP stage.
• Expanded powers for the courts and new processes for raising compliance issues to facilitate a more robust, consistent and timely approach to non-compliance with PAPs.
• Guidance to the courts to consider ways of streamlining directions and the litigation process to reflect the progress already made by parties who have complied with the relevant PAP.
• Making PAPs more user friendly through greater use of non-technical language, and by providing information about the pre-action and litigation process to litigants in person.
• Creating a new general PAP with more concrete time frames and disclosure standards for pre-action letters of claims and replies.

The working group set up by the CJC has not made any recommendations at this stage and responses to the consultation are to be submitted by 24 December 2021.