Now is not the right time to reform pre-action protocols: Law Society

The Law Society has said it does not believe that now is a suitable time to reform pre-action protocols (PAPs).

In response to a Civil Justice Council consultation, Chancery Lane said this was because many other areas of civil justice are being reformed, and the pre-action protocols “work reasonably well in general (although there are some exceptions)”.

The CJC review is intended to make pre-action protocols more effective and streamlined. In November 2021, it published an interim report for consultation on pre-action protocols, of which there are currently 17 including ones covering judicial review and housing.

Reform options being canvassed by the CJC include:

• 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 (LIPs).
• Creating a new general PAP with more concrete time frames and disclosure standards for pre-action letters of claim and replies.

The consultation closed on 22 January 2022. The CJC will review the responses and publish recommendations in a final report.

Expressing “strong reservations” about the practicalities of implementing any such reforms at this time, the Law Society said: “There are many moving parts in the civil justice system at the moment, many of which overlap with each other. Previous changes need time to bed in and be evaluated before launching into yet more changes.

“We know there are likely to be developments in how ADR is used in civil cases; we anticipate the roll out of Fixed Recoverable Costs for civil cases valued up to £100,000 within the next year; we are seeing many changes as part of the HMCTS Reform Programme and the future of how civil litigation is conducted; many personal injury solicitors have been affected by the whiplash reforms; and we await the outcome of the Judicial Review and Courts Bill.”

In addition to questioning the timing of reform, the Law Society said:

• It continues to encourage the use of ADR in appropriate civil cases, but does not support the mandatory use of PAPs as a means of mandating ADR
• Solicitors already did much to keep disputes out of the courts by engaging with PAPs and other dispute resolution mechanisms, and it is important to have data about this or look to gather it in the future. “There should be robust data-driven reasons for any sort of reform so we can understand which changes are needed, why they are needed, and are able to measure the success of any such reform.”
• Lessons needed to be learned from the ‘whiplash portal’ which had essentially moved a PAP online for Litigants in Person to use, before rolling out further online portals.
• More detail was required around the costs involved in these proposed reforms; “there is a risk that both costs and process may increase if the reforms do not meet their objectives.”
• Enforcing sanctions for non-compliance with PAPs was an area that it believed had merit, but there must be a balance between incentivising compliance and preventing unfair outcomes.
• Litigants in Person (LiPs) should be consulted closely, and from an early stage, about any changes to PAPs and how they are expected to be complied with.
• The most unique PAP was arguably the one for Judicial Review, “which we feels works well and should retain its unique status”.

The Law Society’s full response can be downloaded here.