On 22 December 2021, the CJC announced that the deadline for responding to its consultation has been extended to 10 am on 21 January 2022.
With just a few shopping days left until Christmas, busy practitioners and elves alike could be forgiven for overlooking the Civil Justice Council’s consultation on the Pre-Action Protocols (PAPs) which is due to close at 10am on 24 December 2021.
Published on 15 November, the Interim Report makes no formal recommendations at this stage, but brings together the findings of three sub-committees dealing specifically with personal injury, housing and Judicial Review related PAPs, and considers findings from a preliminary survey of court users’ views on the PAPs generally.
Expanding on what is already set out in the Practice Direction – Pre-Action Conduct and Protocols, the Interim Report proposes the creation of “three concrete pre-action protocol steps”:
- Notice and timely information exchange;
- A good faith obligation to resolve or narrow the dispute (including ADR, formal or informal settlement negotiations); and
- An obligation on the parties to complete a joint stocktake report and list of issues prior to commencing proceedings.
So far, so sensible – any steps and effective court powers that can be deployed to avoid scatter gun pleadings that, after months of correspondence, boil down to a short list of issues prior to trial is to be applauded.
Aside from these three core obligations, the working group of the CJC canvas opinions on potential reforms on a wide variety of key areas, including:
- Further embracing digital technologies including online portals for all PAPs.
- Simplifying the language of the PAPs whilst mandating compliance, save in urgent matters.
- Creating a new general PAP with “more concrete time frames and disclosure standards for pre-action letters of claim and replies”.
- Creating new PAPs to handle sexual abuse claims, international travel personal injury claims and small claims worth £500 or less.
- Expanding court powers and processes for dealing with non-compliance with the PAPs.
- Introducing a summary costs procedure, on papers alone, for cases settled in the pre-action stage.
The CJC’s working group has identified that whilst consistency across all PAPs would be preferable, a one size fits all approach is not likely to be appropriate. The Interim Report therefore considers the PAPs on an individual basis and comments are sought on the circumstances and individual PAPs in which the proposals should not apply, or should apply in a different form.
Considering the proposals in the context of the CPR’s broad general objectives of proportionality, economy and efficiency, it seems hard to deny that there are potential advantages to the process of dispute resolution to be made as a whole by adopting elements of these proposals. However, one wonders whether further rigidity in pre-action conduct will serve the practitioner more than the litigant who might otherwise have sought to conduct the early pre-action stages without legal advice.
For instance, the litigant who strays too far into pre-action without legal advice and ultimately ends up out of their depth could find themselves with an unwelcome costs liability, or further delay whilst newly appointed solicitors seek to remedy any deficiencies in the pre-action process prior to issuing.
The working group suggests that it may be appropriate for some proposals to only apply where the litigant has received legal advice, but it seems likely that the interface between those represented and those litigating in person could remain a challenge where new PAPs require a far greater degree of engagement to navigate disclosure and the identification of issues in dispute.
Practitioners will note that aspects considered by the working group include areas that are subject to ongoing initiatives, such as the Disclosure Pilot Scheme (Practice Direction 51U). Question 16 in particular seeks views on whether the general PAP should incorporate a standard for disclosure and, if so, whether that test should be of the standard set out in CPR 31 or Practice Direction 51U. If the pilot is to be rolled out more generally, then perhaps the better approach would be to mandate a form of initial disclosure across all disputes during the pre-action stage and not to limit that to those cases that may or may not arrive in the Business and Property Courts.
The working group’s thinking on the use of online portals appears to somewhat align with the approach of Sir Geoffrey Vos. He has voiced his support for “three interconnecting layers” of online portals, ranging from a portal designed to direct litigants to the correct online system for resolving a dispute, a pre-action portal (or many related portals) that would seek to resolve disputes without litigation, and the third being a portal operated by HMCTS for post-issue. Portals of the second and third kind are of course already in operation, but the approach by Vos would see a huge proliferation in these.
Whether the many-portal approach advocated by Vos is the most effective means through which to steer litigants in person, sophisticated corporate entities and practitioners alike, will depend on whether such a robust, comprehensive and flexible system can be produced. It would no doubt be a considerable technical and design challenge. As the working group recognises, portals will need to direct the parties through the steps and avoid confusion between the parties as to which steps are required to be complied with. Disputes as to which steps are required in any given circumstance may serve to introduce uncertainty, push parties further apart and ultimately create satellite disputes that may run into issued proceedings.
One of the most significant possibilities highlighted in the Interim Report is that the case management process post-issue may ultimately be streamlined as a result of compliance with an enhanced PAP. Parties may in such instances find themselves limited by their pre-action conduct to a far greater degree than they are today. The importance of very early consideration of all issues in dispute, accurately drafting pre-action letters as a quasi-pleading and arguably earlier input from solicitors and counsel may serve to front end the costs of dispute resolution.
The possible changes to the PAPs are substantial and the Interim Report makes for essential reading into the possible future of the path to and through litigation. So do give some thought to penning a response to the consultation before your out of office goes on this Christmas.
