The Civil Justice Council (CJC) has made only minor changes to proposals for radical reform of pre-action protocols (PAPs) in the first part of a final report on the issue.
Among them were that compliance with PAPs should be “formally mandatory” and a new general PAP should be introduced with a requirement to use alternative dispute resolution (ADR) and carry out a ‘joint stocktake report’ before embarking on litigation.
Following an interim report and consultation which closed in January 2022, the CJC working group has split its final response, with part one looking at the potential benefits of digitising pre-action processes and the general PAP, and part two to focus on potential reforms to specific PAPs and the creation of new specific PAPs.
The group, chaired by CJC member Andrew Higgins, professor of civil justice systems at Oxford University, said the 133 responses to its consultation and “most of the proposals were supported by the majority of respondents who proffered a view on them”.
It went on: “Given that the overwhelming majority of cases settle without the need for court adjudication, the potential to use the pre-action stage more effectively to resolve cases without the need for litigation at all, or at least facilitate narrower litigation focused on the real issues in dispute, must be substantial.
“Harnessing the potential of pre-action protocols to promote greater access to more affordable justice, especially through the use of digital portals, is a priority for the CJC.”
In terms of how the proposals have changed, the CJC working group said it had removed the term ‘good faith’ from its obligation on parties to engage in a “dispute resolution process with each other prior to any proceedings being issued”.
This could include mediation, early neutral evaluation, an ombudsman scheme or a pre-action meeting between the parties.
The term ‘good faith’ was “more commonly used in European and North American legal systems and is too unfamiliar to most lawyers in England and Wales”, or in the case of insurance, had a “very specific meaning”.
The working group recommended that the overriding objective in the Civil Procedure Rules be amended to “refer to the need for compliance with, and enforcement of, pre-action protocols”.
Compliance with PAPs would become “formally mandatory”, apart from in “urgent cases” such as where limitation periods were expiring or injunctions being sought.
The Ministry of Justice should develop a general PAP, limited to the main PAP steps, and which could be linked to general claims portals, such as Online Civil Money Claims. Along with the general PAP, there should be a PAP for lower-value small claims worth up to £500.
The small claims PAP should encourage ADR, but that should be optional. Parties should be “made aware of the obligation to engage in mandatory mediation” if litigation was commenced.
In a further change, the working group decided not to include an express strike-out power in the general PAP. In the consultation, the CJC said opponents to the strike-out power argued that it was “too draconian and risked ‘weaponising’ PAPs”.
Given the “significant support and significant concerns” over the introduction of a new summary costs procedure, the CJC recommended that the existing part 8 procedure for costs quantum disputes should be streamlined and a new procedure for determining pre-action liability disputes dealt with separately.
Although the CJC’s recommendations did not apply to private PAPs, which were voluntary, a “formal certification process” was needed to make sure they complied with PAPs.
The general PAP should include a requirement for the parties to produce a “joint stocktake report” in which they identified the issues they agreed on, the issues they disagreed on, the reasons for the disagreement and the status of disclosure.
On digitisation, and having online pre-action portals whenever there was an online court process, there was “qualified support” both from respondents and the working group itself, “the crux of the qualification on full support being that any technological solutions must be properly resourced and not tend to exclude litigants in person or vulnerable/technologically disadvantaged people”.
The CJC advised that a ‘big bang’ approach to implementation of its recommendations should be avoided, in favour of a “staged approach”.