Civil Justice Council launches review of Pre-action Protocols

The Civil Justice Council has launched a review of Pre-action Protocols (PAPs) that will look at all aspects of PAPs including their purpose, whether they are working effectively in practice and what reforms, if any, are required.

The CJC said it was particularly interested in looking at how PAPs are working for litigants with limited means; the costs associated with PAP compliance; the potential of PAPs in online dispute resolution, and the potential for PAPs to be streamlined.

It added, however, that its focus was not closed, and it is conducting a preliminary survey to obtain feedback and suggestions about what ought to be the focus of the review, and the priorities for reform.

“Accordingly, we want to hear from anyone with experience of, or an interest in, PAPs including the judiciary, practitioners, litigants, academics, and representative organisations working in the civil justice system,” the CJC said.

A link to the survey can be found online.

A list of PAPs currently in force can be found on the Ministry of Justice website.

The survey will be open until Friday 18 December 2020.

CJC Pre-action Protocol Review Provisional Terms of Reference (subject to revision)

  1. What amendments to the PAPs, or associated guidance to LIPs, would be desirable to draw litigants’ attention to the effects of Jet2 Holidays Limited v Hughes & Hughes [2019] EWCA Civ 1858?
  2. 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 18? What function should PAPs perform in the 2020s?
  3. Are there major inconsistencies between PAPs and are these justified by the differences in the litigation to which they relate?
  4. Are the “soft sanctions” for non-compliance with voluntary pre-action protocols – case management directions and costs orders – being regularly and consistently applied?
  5. Should all PAPs be mandatory? Should any PAPs be mandatory? What should the sanctions for non-compliance be?
  6. Are any PAPS overly technical or burdensome to litigants and can they be streamlined?
  7. Are any PAPs lacking key steps that ought to be required of parties, or prohibit initiatives that should be allowed?
  8. Are PAPs a mechanism for de facto compulsory ADR prior to commencement of litigation? Should they be?
  9. What are the ratios of cases settled at the PAP stage compared to post issue mediation?
  10. Should there be any changes to PAPs as a result of the HMCTS reform programme and the digitisation of the civil justice system generally? To what extent are PAPs already online? Should there be further digitalisation of PAP steps and guidance?
A&M Bacon