Proposed changes to Pre-Action Protocols

The Civil Justice Council has published its final report on Pre-Action Protocols. Jim Byard summarises the main recommendations and discuss the implications for practitioners.

In a comprehensive report published on 21 August 2023, the Civil Justice Council (CJC) Working Group sets out its final conclusions and recommendations of its review of existing Pre-Action Protocols (PAP’s).

The review initially commenced in late 2020, with the interim report published in November 2021 and the consultation process closing in January 2022.

The main recommendations

• The creation of a new General PAP to replace the existing Practice Direction Pre-Action Conduct (PDPAC).
• The creation of a PAP for lower value claims worth £500 or less.
• The overriding objective (CPR 1) and individual PAP’s to be amended and to reference both the need for compliance with PAP’s and the obligation for the parties to co-operate.
• Compliance to be made formally mandatory excepting “urgent cases”, defined as those where limitation is expiring, an urgent injunction or where there is serious risk to health or welfare of a party without urgent court attention.
• The Ministry of Justice to look at the feasibility of developing a general on-line portal linked to the main PAP steps but capable of being linked to existing on-line portals such as OCMC and damages claims (DCP).
• To streamline costs quantum disputes with the parties given an option of requesting summary or detailed assessment.
• To allow the parties to rely on pre-action letters of claim and replies and any joint stock-take report as pleadings for claims and defences.
• Governance of Pre-Action Portals to be the responsibility of the Online Procedural Rule Committee (OPRC).
• For there to be a commitment to the transparent sharing of data.

The general and low value PAP’s

The general Pre-Action Protocol will replace those cases which are currently governed by PD Pre-Action Conduct. This will not replace cases governed under specific Protocols, such as industrial disease cases which are governed by “The Disease and Illness Pre-Action Protocol” or the PAP for lower value personal injury (Employers’ and Public Liability). Although the report makes clear that ‘none of the recommendations would automatically apply to any other PAP’, its general principles - court proceedings as a last resort, early exchange of relevant information, parties to behave reasonably and proportionately and to negotiate in good faith with the aim of settling the dispute or narrowing the issues - will have applicability to all Protocols.

The General PAP will require a letter of acknowledgment within 21 days and a full response to be provided within 90 days.

The defendant must identify in its letter of acknowledgment if it believes it is the right defendant or the identity of the correct defendant if the companies are linked together with details of its insurers. The defendant must also state whether it needs additional information to provide a full response.

The General PAP does not include a formal disclosure standard but gives additional guidance on “key documents”. Our previous article commenting on the Working Group’s recommendations may be accessed here.

The Small Claims Pre Action-Protocol recommends a period of just 30 days to respond to the claim in full alongside an obligation to engage in mandatory mediation if litigation is commenced.

Commentary

The final report serves to bolster the importance of Pre-Action Protocols to the delivery of civil justice by proposing an amendment to the overriding objective and the individual Protocols alongside making compliance now formally mandatory.

At its heart is a desire for an earlier and proportionate exchange of information, to expedite response times and to reduce litigation. These recommendations will sit alongside the Ministry of Justice’s stated commitment (25 July 2023), that mediation will ultimately become compulsory for all civil claims valued up to £10,000 without exception. For more information on this, read our article on how compulsory mediation affects defendants and their insurers.

Although the report envisages that the courts will retain discretion to order conventional pleadings, the ability of parties to rely upon the letter of claim, the letter of response and joint stock-take report as pleadings heralds a potentially significant change. This will serve to highlight any inconsistency if a different approach is taken by a party at different stages in the claims process and arguably will add time and cost in ensuring the documents are properly prepared.

Whilst the report stops short of introducing a formal “strike out” option for non-compliance with the Protocols, it envisages the increased frequency of costs sanctions to be imposed at the outset, not at the conclusion of litigation, reflecting any parties’ non-compliance or conduct.

Compliance by all parties will become more and not less important once these recommendations are enacted.

Jim Byard is a partner at Weightmans.