The Civil Justice Council (CJC) started a review of pre-action protocols (PAP) in late 2020, establishing a main working group and three sub-committees to deal with various PAP.
Last month, the Working Group put forward a package of proposals in an Interim Report to allow the CJC to consult as widely as possible and to allow stakeholders to submit views about ideas for prospective PAP reform.[i]
From the outset of the Report, it was acknowledged that the Working Group can only state its principled intentions, as the effect given to any proposals recommended by the CJC is a matter for the Civil Procedure Rule Committee (CPRC) to decide. The CJC is not responsible for drafting PAP. However, it may draft text that is willingly adopted by the CPRC.
For example, the Working Party noted that PAP are not expressly referred to in the overriding objective, despite their assumed importance for litigation conduct. Reflecting that this may serve to undermine observance of PAP, it suggested:
- Amending CPR 1.1(2)(f) to read –
- Amending CPR 1.4(2)(a) to read –
The Report’s Executive Summary alluded to a host of modifications to the way that PAP operate, such as:
- Making all PAP available online via portals.
- Formally recognising that compliance with PAPs is mandatory and compelling parties to apply for a stay of proceedings to comply with time limits, so that the PAP process is completed.
- Introducing a non-prescriptive good faith obligation with ‘good faith steps’ for parties to engage in to try to resolve or narrow the dispute at the pre-action stage.
- Introducing a concrete requirement to complete a joint stocktake report before the start of proceedings, which identifies the issues the parties agree and/or disagree on, as well as what disclosure has been provided and what is pending.
- Unveiling a new summary costs procedure, independent of Part 8, which would allow the court to determine disputes over costs liability and quantum where disputes settle at the pre-action stage.
- Opening up a full range of sanctions for non-compliance with PAP obligations, with a formalised process for robustly, consistently and timely raising compliance issues. One way to do this would be to have a separate question on the Directions Questionnaire addressing compliance, or requiring parties to formally apply for sanctions. The court would reserve the power to enforce a sanction of its own motion.
- Guiding the courts to consider ways of streamlining directions and the litigation process to reflect progress made through PAP compliance.
- Making PAP more user friendly through greater use of non-technical language, diagrams, etc.
- A link to the N242A claim to allow parties to make a valid Part 36 Offer could be provided.
- The Court of Appeal’s ruling in Jet2 Holidays Limited v Hughes & Anor  EWCA Civ 1858 that providing knowingly false information in purported compliance with a PAP may constitute committal for contempt of court, could be codified.
- Converting the Practice Direction on Pre-Action Conduct and Protocols (PD-PACP) into a new General PAP. This would have more concrete time frames (e.g. 14 days to respond to pre-action letter of claim, with scope for further 28 day extension) and disclosure standards for pre-action letters of claim and replies. It would continue to be the default protocol where no litigation specific protocol applied and would feature a proportionality statement warning that disproportionate costs incurred in complying with the PAP may not be recoverable.
The Working Group is also scouting views on whether pre-action letters of claim and replies should, generally speaking, be verified by a statement of truth.
Moving on to focus solely on reform options for personal injury PAP, the Working Group highlighted that the relevant PAP already demonstrate a ‘good degree of success’, with 80% of the 500,000 new claims per year accommodated resolving themselves without involving court resource.
That being said, there was some support for the conception of an overarching generic injury protocol, ‘with users being directed to specific “Part B” for each specialist injury area’.
It was thought that efficacy of personal injury PAP could be improved largely through the general recommendations to PAP listed in the Executive Summary, i.e. not changes exclusive to personal injury PAP. The ability to obtain judicial directions pre-issue was an original thought floated, however.
Looking more in depth into the workings of the Personal Injury Protocol, a few potential improvements were discussed. For instance, the Working Group hinted that the protocol could be re-worded to account for the fact that cases settle without full admissions, yet the PAP only deals with schedules of loss where liability is admitted. Besides instigating a review of the process for nominating experts, the Working Group also questions whether the specialist High Court asbestos list ‘show cause’ procedure could be beneficially adopted in all personal injury cases falling outside the remit of fixed recoverable costs to address primarily liability.
With regards to the Disease Protocol, it was seen as probably inappropriate to seek significant alterations at this stage. As with the Personal Injury Protocol, though, scope for tweaking the Disease Protocol was tabled. The Working Group accepted concern among claimants that defendants sometimes focus too heavily on contribution proceedings, to the detriment of their obligations to respond to their own liability. Conversely, the Working Group accepted concern among defendants that they are often given insufficient detail to investigate properly pre-action. Thus, earlier exchange of information and disclosure should be encouraged wherever possible to narrow the issues in dispute. Timing of service of medical reports and medical records was another issue pinpointed by defendants, often arriving too late for any realistic response in the protocol period.
Consultation on the Report will end on 24 December 2021.
[i] John Hyde, '"Stocktake" requirement before heading to court discussed by civil rule-makers' (16 November 2021 Law Gazette) <https://www.lawgazette.co.uk/news/stocktake-requirement-before-heading-to-court-discussed-by-civil-rule-makers/5110564.article> accessed 15 December 2021.
Nick Hilborne, 'CJC backs new pre-action protocols and "good faith obligation"' (17 November 2021 Legal Futures) <https://www.legalfutures.co.uk/latest-news/cjc-backs-new-pre-action-protocols-and-good-faith-obligation> accessed 15 December 2021.