Are pre-action protocols working?

In April 1999, a number of reforms, generally referred to as the Woolf Reforms after Lord Woolf, by reference to his reports looking at access to the civil justice system, came into being. One of them was the creation of pre-action protocols, which were designed in part to speed up dispute resolution and reduce costs. Whilst some would agree they have met their purpose, others point to the tick box mentality of their application in a process in which the litigant can become a mere bystander.

The Civil Justice Council (CJC) reviewed the existing pre action protocols (PAPs) in 2020. Its report of that review, published in November 2021, articulated what role PAPs should play in the dispute resolution system.

Although the report does not make any recommendations, it does raise a number of questions that are now out for consultation. Those questions illuminate areas and suggest that recommendations for change will be made next year. Those recommendations would then be considered by the committee that decides what the court process or Civil Procedure Rules, should be.

Anyone, including insurers of parties involved in litigation and dispute resolution, ought to be aware of the November 2021 report, which can be accessed here and the questions raised by the CJC about the workings of the existing PAPs, and the development of new or “general” (ie default PAPs) for those jurisdictions not yet covered by a PAP.

The consultation has been extended and will end at 10am on 21 January 2022, so there is little time to make your views known.

Key reforms canvassed in the report include:

  • Making all PAPs available online via portals.
  • Making compliance with PAPs mandatory.
  • Introducing a “good faith” obligation to resolve or narrow the dispute at the pre-action phase.
  • Introducing a requirement for a joint stocktake by the parties as a final step before proceedings are started.
  • Introducing a summary costs procedure for cases that are resolved at PAP stage.
  • Extended powers of the court to deal with non-compliance.
  • Making the PAPs more user friendly.
  • Creating a new general PAP which would be the default protocol where no specific protocol applies.

The report makes clear that not all members of the working groups that contributed to the report, support all the options for consideration that are set out in the report.

The range of issues addressed by the questions put out for consultation suggests that reforms will be recommended, for example – possible changes to the timing of steps in the protocol, making response times quicker.

Other questions ask about pre-action disclosure of expert evidence, or the making of effective offers to resolve a claim.

Anyone involved in dispute resolution ought to have an interest in this consultation. Why? Well look at the terms of reference – a perfect invitation to have your say on improvements or changes you would like to see. There are ten numbered terms of reference but this one, number two, sums it up:

 “Are there any PAPs that are not fulfilling the purposes of PAPs as originally envisioned by Lord Woolf and/or the purposes currently set out in ‘CPR PD-PAC’. What function should PAPs perform in the 2020s?”

If you would like to contribute to the consultation this link will take you there.

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