In a significant move towards a more efficient and just civil justice system, the Civil Justice Council (CJC) has undertaken a comprehensive review of pre-action protocols (PAPs) in the English courts. The CJC’s recommendations are nothing short of transformative, with the primary emphasis on promoting mediation as the preferred method for resolving disputes before initiating legal proceedings.
The CJC’s final report, Part 1 of which was recently released, emphasizes the importance of PAPs and their role in guiding parties toward mediation before litigation becomes the last resort. This monumental shift aligns with the expansion of the small claims mediation service, highlighting a clear commitment to alternative dispute resolution methods.
One crucial case to watch is Churchill v Merthyr Tidfyll, which is poised to decide whether the court can stay proceedings if parties fail to adhere to a pre-action protocol. This underscores the newfound significance of PAPs and the imperative role of mediation within this framework.
The CJC’s journey in reevaluating PAPs began in 2020 when a dedicated working group initiated a thorough examination of their role in the civil justice system. The interim report released in 2021 laid the foundation for the final recommendations presented in Part 1 of the report, with some modifications.
The core proposals outlined in the report, set to be implemented through primary legislation where necessary, are as follows:
- Formalizing PAPs’ Role: The report suggests amending the Overriding Objective in CPR Part 1 to explicitly reference the importance of following and enforcing PAPs.
- Mandatory PAP Compliance: In non-urgent cases, compliance with PAPs is to become mandatory, ensuring parties explore alternative dispute resolution methods before litigation.
- Introducing a New “General PAP”: The existing Practice Direction – Pre-Action Conduct (PD-PAC) is to be replaced by a comprehensive “General PAP” applicable to all cases not covered by specific area-specific PAPs. This General PAP mandates a series of sequential steps, including engaging in a dispute resolution process, with a preference for a confidential pre-action meeting.
- Stocktake Reports: Parties will be required to jointly prepare “stocktake” reports summarizing their positions on disputed issues and the status of pre-action disclosure.
Part 2 of the report, with a timeline yet to be announced, will delve into the role of bespoke area-specific PAPs and potential changes, even considering the creation of a new PAP tailored for commercial disputes.
In conclusion, the CJC’s recommendations mark a turning point in the English civil justice system, placing mediation at the forefront of dispute resolution. To fully embrace this transformative approach and access the benefits of mediation, parties are encouraged to consider mediation as the first step in their dispute resolution journey. To initiate mediation, please don’t hesitate to get in touch, as it promises to be a pivotal component of the reformed pre-action protocol landscape.