What role should pre-action protocols play in the civil justice system?
On 15 November 2021, the Civil Justice Council (CJC) published an interim report for consultation on the subject of pre-action protocols (PAPs). Following the conclusion of the consultation on 21 January 2022, the CJC Working Group will draft a final report for consideration by the Civil Justice Council, likely in the Spring of 2022.
The introduction of PAPs was one of the central features of the Woolf Reforms of the late 1990s, with the aim of tidying up the litigation system and promoting greater access to civil justice.
Lord Woolf believed that achieving a cheaper, simpler, more predictable dispute resolution process for all litigants would be beneficial to both the parties to litigation and the court. Since then, the PAPs have evolved and multiplied in number and scope.
However, in the context of an increasingly digitised court system and in light of the COVID-19 pandemic, concerns have been raised as to whether the current PAPs are fit for purpose, and whether there is an opportunity for better compliance and judicial enforcement, to ultimately reduce litigation.
What is included in the interim report?
The interim report canvasses a number of reform options including formally recognising that compliance with PAPs should be mandatory, and introducing a good faith obligation to try to resolve or narrow the dispute at the pre-action stage. The CJC also propose requiring parties to complete a joint stocktake report/list of issues as a final step before the start of proceedings.
In order to facilitate a more robust, consistent and timely approach to non-compliance with PAPs, the CJC’s report discusses the introduction of new processes for raising compliance issues. The creation of a new summary costs procedure to resolve costs disputes about liability and quantum in cases that settle at the PAP stage is also put forward.
The report also discusses the creation of a new general PAP with more concrete time frames and disclosure standards for pre-action letters of claim and replies.
This general PAP would "continue to be the default protocol where no litigation specific protocol applied, and could be used by any litigant in person who was unsure which protocol applied to their dispute".
Practical implications of the CJC’s proposals
Kennedys has collaborated with The Forum of Insurance Lawyers (FOIL) in order to submit a wider response on behalf of the defendant insurance market relating to personal injury, professional negligence and construction matters.
While in principle many of the proposals within the interim report appear sensible and are likely to be welcomed by defendants or compensators, further detail and clarification is required. Concerns have also been raised around the CJC’s suggested tightening of deadlines both in terms of existing deadlines and imposing new ones. We explore some of the salient points below:
- We agree with the CJC that compliance with PAPs should be mandatory except in urgent cases, which will hopefully encourage a new mindset around pre-action behaviour for both the parties and judiciary. However, parties should not be discouraged from engaging in initial correspondence (prior to engagement of the PAP) to assess whether a resolution can be reached or whether the issues in dispute can be narrowed.
- 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 will no doubt be welcomed by defendants in the personal injury arena where poor behaviours, including lack of communication and failing to provide sufficient disclosure, raise access to justice considerations. Nonetheless, further clarification is required, for example, in terms of what might constitute a breach of a PAP and therefore warrant a sanction. From professional negligence and construction perspectives, however, the current sanction for a failure to comply with the PAP remains appropriate.
- While the requirement to complete a joint stocktake report is desirable from a personal injury perspective, as is listing the documents disclosed by the parties and those that are still sought, it should be recognised that the report will vary depending on the size of the claim. The proposed 14 days from the conclusion of a good faith step to completion of the report is too short and as such, risks preventing the parties from exploring their positions and settlement further at this stage of the PAP process. By contrast, from a professional negligence perspective, usually at the end of the PAP process, it is often clear from the correspondence as to which matters remain within dispute and as such, there is less merit in producing a stocktake report which may add to the costs of a PAP process.
- With regard to the general pre-action protocol, the proposal for parties to have 14 days to respond to a pre-action letter of claim, with the possibility of a further extension of 28 days where expert evidence is required, is also very short when taking into account that claimants often have much longer to prepare their claim pre-notification.
- The tightening of time limits for responding to a letter of claim also presents issues in construction/engineering disputes and professional negligence claims. In many construction disputes, there are complex contractual frameworks to consider and the documentation involved can be voluminous. Cases will often involve multiple parties which adds to the complexity and issues which need to be considered in order to prepare a letter of response. Often, the involvement of insurers means that there is a longer chain of communication and authority than would be the case if insurers were not involved. Ultimately, limiting the time available for a response may result in parties providing more general responses to allegations as they are unable to undertake a thorough investigation. This in turn may impact the likelihood of narrowing the issues in dispute.
Strengthening the principles of collaboration and communication between parties, with greater judicial support, should result in more cases settling at an earlier stage, presenting cost savings for insurers and compensators. However, when taking into account the 18 different PAPs, corresponding to distinct specialist areas, it is important to note that a one size fits all approach is unlikely to be an effective way forward. As such, careful consideration of the practical implications of the proposals, in addition to effective data collection and evaluation must be built into any reform.
Read other items in Legacy Disease Brief - April 2022
- Updated Clinical Negligence Protocol in Northern Ireland
- A reminder that pre-action disclosure is not an exercise to ‘fish for material’
- More needs to be done to encourage the use of technology to facilitate settlement
- Proposed reform of County Court civil jurisdiction in Northern Ireland – striking the right balance
- The call continues for pre-action protocols in clinical negligence claims in Ireland
- Pre-action disclosure can no longer be used as a ‘fishing expedition’ to further advance a claimant’s case
- The Pre-Action Protocol for Construction and Engineering Disputes: traps for the unwary and how to avoid them (Part 1)
- The Pre-Action Protocol for Construction and Engineering Disputes: traps for the unwary and how to avoid them (Part 2)
- New construction and engineering pre-action protocol: less information and more litigation?