By Christelle Sim
In England and Wales, parties have a duty to take certain steps before commencing proceedings. Such steps include explaining one's case in correspondence, exchanging key documents and information, and attempting settlement or narrowing areas of dispute. These rules are set out in the Practice Direction on Pre-Action Conduct and Protocols (“PDPAC”), supplemented by the Pre-Action Protocols (“PAPs”) which deals with specific kinds of litigation (i.e. the Professional Negligence Pre-Action Protocol). To further tighten the rules and ensure that this procedure is complied with, the Civil Justice Council (“CJC”) has published an interim report proposing stricter rules on the procedure. The CJC has launched a public consultation on proposed reforms to PAPs, in order to help maintain their effectiveness in an increasingly digitalised justice system. Initially, the consultation was due to close on 24 December 2021, but this deadline has now been extended to 21 January 2022.
Key Proposed Reforms
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.
Responses to the Consultation
It might come off as a surprise that the CJC has initiated this proposal. CJC conducted a preliminary survey in 2020 which revealed that almost two-thirds of court users are generally happy with the status quo of the PDPAC. However, the revised PDPAC and 78 questions that accompany it provide court users a second chance to express their views, not just in the abstract, but in response to concrete proposals.
Responses provided during the consultation will be considered in the final report produced subsequently. By the looks of the current report, costs will be a central theme to any changes. Judging the comments so far, the courts will explore options to impose costs sanctions more consistently where there is non-compliance with the PAPs and where there is an unreasonable lack of engagement with alternative dispute resolution. In addition, proportionality remains a central theme and is something all practitioners should prioritize thinking about. As it states in the report "costs incurred in complying with [any] protocol [...] should be proportionate to the dispute." [1]
Although proposals are still at the interim stage, it is good to have insights into the judiciary’s thought processes.
References:
[1] Courts and Tribunals Judiciary, CJCPAP Interim Report (2021) Appendix 4 para 15.
Comments