The Civil Justice Council has published its second final report on the subject of pre action protocols. The CJC recommends various changes which increase the obligation to try to resolve cases before resorting to the Courts. In particular it is proposed that there be a new Multi-Track Business and Property Courts pre-action protocol which would be mandatory but not prescriptive.
In Jet2 Holidays v Hughes the Court held that people could face committal for contempt of court in relation to statements made before proceedings were issued. Those acting for claimants (and indeed any potential party) will need to take care to ensure that any documents served pre-proceedings that are endorsed by statements of truth contain truthful evidence. Appropriate warnings should be given. If the documents contain false material then contempt of court proceedings may be available, even if no claim for damages is subsequently issued. This essentially means that pre-action conduct comes under the ambit of the Court’s jurisdiction.
It was out of this decision apparently that the Civil Justice Council’s review of pre-action protocols was born.
The CJC published its first final report on the subject of pre action protocols in 2023 and the second report was published November 2024.
The reports are wide ranging covering all the pre-action protocols. The 2024 report starts by focusing on the interplay between mandatory mediation and pre action protocols before going on to look at the following protocols:
Personal Injury, housing, judicial review, construction and engineering, professional negligence, debt, media and communication and a new protocol for business and property type cases.
The whole point of the pre action protocols is to try to encourage parties to exchange information and use ADR before issuing a claim. In some cases it is obligatory to follow the pre-action protocol such as in low value personal injury cases. There is also a strict protocol for housing disrepair cases. Normally pre-action protocols expect parties to send a letter of claim and for a potential defendant to respond. There is usually a requirement to exchange evidence and try to resolve a case through ADR. This goes hand in hand with the Courts’ expanded powers to order a stay for ADR or mediation following the case of Churchill v Merthyr Tydfil CBC. The objective is to make litigation a last resort and reduce the number of cases going to Court.
As the 2024 report explains, a lot has happened in the dispute resolution field since the interim report which had flagged the possible introduction of a good faith obligation to try to resolve or narrow a dispute. CPR 1,3,28 and 44 have since been amended to give a greater emphasis to alternative dispute resolution and the power of the court to mandate it. These changes have been factored into the recommendations regarding pre-action dispute resolution.
The CJC was keen to avoid the risk of unnecessary duplication with parties automatically being required to engage in mediation before and after issuing proceedings particularly in small claims disputes.
What then are the recommendations?
Rather than imposing mandatory ADR on the parties pre-action the working group recommended a non-prescriptive obligation to engage in a dispute resolution process as part of the pre-action protocol process. The working group considered that if parties did engage a third-party and a formal ADR process pre-action then the proposal is that those parties should be exempt from any automatic requirement to engage in mediation after issuing proceedings: A second bite of the cherry was not completely ruled out in an appropriate case
It is suggested that all pre-action protocols which include a dispute resolution obligation should be amended to state that the court has power to compel parties to engage in a dispute resolution process and that the court may order the parties to use ADR during proceedings even though they have previously engaged in an ADR process. However, it is proposed that where parties engaged in a formal dispute resolution process like Mediation involving a third-party neutral at the pre-action stage they should be exempt from any automatic requirement to engage in mediation after proceedings are issued
In the 2023 report the CJC recommended bringing in a new general pre action protocol and a pre action protocol for small claims under £500 in value. Essentially, pre action protocols are adding an extra layer of work before proceedings can be issued meaning that there is more of a front loading of legal costs.
The 2023 report recommended that the overriding objective be amended to refer to the need for compliance with and enforcement of pre-action protocols. All pre-action protocols should make explicit reference to the overriding objective and specifically the parties’ obligation to cooperate. Compliance should be made mandatory except for urgent cases or those involving limitation, cases or claims whether is a serious risk to the health or welfare of a party without urgent intervention. Parties should be asked about their vulnerability.
It was recommended that all directions questionnaires should contain a question about compliance with pre-action protocols. It was suggested that there should be a new summary cost procedure to resolve cost disputes over matters where this substantive aspect of the dispute was settled during the pre-action stage. It was not recommended that statements of truth should be introduced at the pre-action stage.
One can envisage future disputes between parties as to whether they have complied with protocols.
Personal injury
The working group recommends that the importance of ADR should be given greater prominence and explained more simply. They considered that the stock take process should be obligatory.
Amongst other recommendations it is suggested that the provisions concerning acknowledgement of the letter of claim in the pre-action protocol should add a requirement to supply the name of the liability insurers as soon as known with full contact details and the name of those with conduct
The working group recommended revising the stock take provisions and in the clinical negligence section the benefits of good communication are emphasised. It is recommended that there should be reference to the duty of candour and the use of apologies provided for by the Compensation Act and “saying sorry” initiative published on 10 September 2018 making clear that the apology should be substantive rather than a token gesture to be meaningful.
It is mentioned that those involved in mediating clinical negligence disputes emphasise the importance of communicating lessons learned because of the value it brings to our foot to resolve Claims
It was recognised that this pre-action protocol will need to be revisited when the DoH and Social Care’s low value clinical disputes protocol goes live.
Housing Claims
Regarding housing claims, the subcommittee considered that the recommendations might need to be revisited following likely regulatory change being a reference to the Renters’ Rights Bill which could involve abolishing fixed term assured tenancies and assured short hold tenancies imposing obligations on landlords and others in relation to rented homes and temporary and supported accommodation and for connected purposes
In the interim report in 2021 it was suggested that the current housing disrepair protocol works reasonably well and fulfil the stated aims. It was suggested that two changes to the protocol would be advisable: the introduction of a simplified procedure to determine costs when cases settle under the protocol, based upon the current procedure to determine costs on the papers when a judicial review claim settles prior to permission being granted but with a breakdown of the costs claimed. Also they suggested the introduction of the requirement on landlord to specify an address to which pre-action protocol letters should be sent
Judicial Review
It was recommended that an enhanced obligation of good faith should be fundamental to the conduct of the parties.
There is a discussion as to whether the duty of candour applies pre-action as it has been suggested that the duty does not arise until proceedings are issued. It was suggested that the duty applies at all stages of judicial review proceedings.
Construction and Engineering
Engagement with this pre-action protocol is not compulsory and a claimant is not required to comply with it before commencing proceedings. If all the parties to the proposed proceedings expressly so agree in writing the parties can opt out of the protocol and proceed to issuing court proceedings. There were no major changes recommended
It was recommended that engagement should be made mandatory subject to limited exceptions, including the existing right to opt out by mutual consent.
Professional negligence
It was recognised that the time frames under this protocol are more generous than under the general pre-action protocol. It was not recommended to change this.
Debt Claims
It was recommended that the pre-action protocol should be made more prescriptive in terms of the obligations on creditors so the pre-action letter of claim should include greater disclosure about the origins of the debt including notices previously sent and generic information about legal defences that may be available. It was felt that there should be a positive obligation on creditors to take reasonable steps to identify the debtor’s current address where they have reason to believe that the debtor no longer resides at their last known address if the creditor does not have the email address
It was considered that there should be research into how the protocol could be made more user-friendly and the terms and should be replaced with “claimant and defendant”
The protocol should be incorporated into the MCOL online Platform.
Media and communications
It is recommended that this protocol will be amended to include the mandatory pre-action dispute resolution obligation set out in the proposed general pre-action protocol and that it should be amended to incorporate a formal stock take requirement set out in the proposed general pre-action protocol.
Multitrack litigation in the Business and Property Court
It was recommended that there should be a separate pre-action protocol for multitrack litigation in the Business and Property Court. It was recommended that this protocol should be mandatory but with some important exceptions.
Also, it should not apply where the parties had already engaged with an agreed process such as an escalation clause or tiered dispute resolution clause. It was also suggested that the parties should have a right to opt out of the protocol by written consent particularly given the involvement of international parties.
Where the protocol would apply it was agreed that there is a need to engage in a pre-action dispute resolution process. The obligation was non-prescriptive but required the parties to engage with each other directly or with the assistance of a neutral third-party to see whether the dispute could be resolved or narrowed. However, it was considered that it would be inappropriate to include a formal stock take procedure. Producing a list of issues which are agreed and still in dispute might be helpful in some cases at the pre-action stage, but the working group accepted that in many cases this process may only be productive and proportionate after the close of pleadings and in some cases after further interlocutory steps including disclosure. Therefore, the proposed protocol would simply remind the parties of the need to review their positions and continue to consider whether there are ways that the issues could be narrowed.
It was suggested that the protocol should be reviewed within a reasonable time of it being introduced to see how it was working in practice. It was not recommended that this protocol be mandatory subject to exceptions for urgent cases where the parties had engaged to agreed to engage in an equivalent dispute resolution process and where the parties had agreed in writing to opt out.
At Appendix 1 of the report there is included a draft pre-action protocol for these cases
Conclusion
Once again, the direction of travel is towards increasing use of ADR and mediation before starting litigation. The new pre-action protocol for Business and Property Court disputes is likely to have an impact on multi-track cases. This report will now go to the Rules Committee to put the proposals into action.
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