Civil Justice Council launches consultation on Pre-Action Protocols

The Civil Justice Council has published an interim report for consultation on the subject of pre-action protocols (PAPs).

The report considers what role PAPs should play in the civil justice system in the 2020s including their role in an increasingly digitalised justice system.

The CJC said it canvases a number of reform options to the Practice Direction-Pre-Action Conduct (PD-PAC), the existing PAPs, and the creation of new PAPs in certain areas.

It stressed, however, that this is an interim report and its Working Group is not making any recommendations at this stage.

Key reform options canvassed in this report include:

• 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.

The consultation will close on Friday 24 December 2021 at 10am. More information can be found here.