CJC backs new pre-action protocols and ‘good faith obligation’

Holiday injury cases: New protocol needed

The Civil Justice Council (CJC) has set out a shopping list of potential changes to pre-action protocols (PAPs), including a summary costs procedure and new PAPs on small claims track cases worth £500 or less, sex abuse and overseas travel personal injury claims.

The CJC published a survey showing that a small majority of solicitors, barristers, judges and others wanted only “minor reforms”.

In a 164-page interim report, the CJC outlined a range of measures to improve the existing system of 18 PAPs, while avoiding a “one size fits all” approach.

Among them was a formal recognition that compliance with PAPs was mandatory and the introduction of a non-mandatory “good faith obligation” to encourage settlement or at least narrowing the dispute.

Parties would be required to complete a “joint stocktake report” or list of issues as a “final step” before the start of proceedings, which would also set out the position on disclosure.

A summary costs procedure, independent of part 8, would be introduced for cases resolved at the PAP stage, with courts making decisions without a hearing and with restricted written submissions.

All PAPs would be available through online portals, and they would be “more user friendly through greater use of non-technical language”.

Meanwhile, there would be expanded powers for the courts and “new processes for raising compliance issues to facilitate a more robust, consistent and timely approach to non-compliance”.

A new general PAP would be created with “more concrete time frames and disclosure standards for pre-action letters of claim and replies” and which could act as “the default protocol where no litigation specific protocol applied and could be used by any litigant in person who was unsure which protocol applied to their dispute”.

The CJC said it was currently working on a final report on small claims, after the interim report on the subject was published in June this year, and was considering the creation of a “more streamlined track” for claims of £500 or less, with a new PAP to accompany it.

On sex abuse claims, the CJC’s personal injury subcommittee said a PAP “would help with early resolution and apologies where appropriate and also bring about greater transparency for those abuse survivors who are considering making a civil claim”.

The subcommittee said overseas travel personal injury claims needed additional steps such as expert opinion on the law in the country where the accident occurred, the use of interpreters and need to determine forum conveniens.

The CJC carried out a survey at the end of last year asking solicitors, barristers, judges, academics, advice centres and representative organisations what they thought about PAPs.

A slender majority of the 148 who replied (54%) said “minor reforms” were desirable. Just under 30% said “significant reforms” were required and a further 8.8% “major reforms”. The rest wanted no changes to the system.

More than 70% believed that PAPs helped resolve disputes at proportionate cost, although less than 20% said that courts dealt consistently with breaches.

The CJC said that not all the members of its PAPs working group supported all the possible changes set out in the interim report, with some proposals both “strongly supported” and “strongly opposed”.

Any changes would need to be approved by the Civil Procedure Rule Committee.

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