Pre-action protocol reforms should be welcomed

Emilie Jones and Nicola Seymour of Pinsent Masons were commenting after the CJC published its second final report on PAPs under the Civil Procedure Rules (CPR) which builds on the interim findings published in 2021 and the first part of the final report released in August 2023.

PAPs play an important role in litigation. They set out the standards of conduct expected by the court at pre-action stage and encourage the parties to agree a settlement without going to court. “This is underlined by the CJC’s proposal to amend the overriding objective of the CPR to include express reference to compliance with PAPs,” said Jones.

Many specific types of disputes already have their own designated PAPS. These will remain despite the latest report, with minor amendments to reflect the introduction of a new, general PAP.

The CJC’s latest recommendations include exempting parties who engage in formal alternative dispute resolution (ADR) under a PAP at pre-action stage from any automatic requirement to engage in mediation, such as small claims mandatory mediation, post-issue. The proposed reforms would also update the PAP for judicial review claims, including so as to fully reflect the enhanced good faith obligation and duty of candour that apply in judicial review matters.

Nicola Seymour, litigation expert at Pinsent Masons, said: “The nature and process of judicial review disputes are in themselves distinct from more standard commercial litigation in the High Court, so reflecting this in the pre-action process certainly would be a helpful improvement. For example, introducing a duty of candour at the pre-action stage before the courts are involved would assist prospective claimants to properly understand the issues in dispute and whether judicial review is a suitable vehicle for the dispute”.

The recommendations further include updating the PAP for debt claims to make it more prescriptive in terms of the obligations on creditors and more user-friendly. This includes aligning timeframes with the general PAP and integrating dispute resolution obligations to facilitate early settlement. The report introduces a brand-new PAP for multi-track claims in the Business and Property Courts. This will be mandatory except where the parties have already engaged or agreed to engage in an equivalent dispute resolution process, the parties have agreed in writing to opt out of the PAP, or in circumstances where the matter is urgent.

Seymour said: “The introduction of a new PAP for multi-track claims in the Business and Property Courts recognises that more complex, higher value claims which are not subject to an existing specific PAP may not necessarily be best suited to the new general PAP.”

The report notes that pre-action dispute resolution should complement the developments following the landmark decision in Churchill v Merthyr Tydfil relating to compulsory mediation. However, the report does not go as far as recommending mandatory mediation pre-action, rather a non-prescriptive obligation to engage in some sort of dispute resolution process as part of the pre-action process. If this takes the form of mediation, the report recommends that the parties be exempt from any automatic requirement to engage in mediation after the issue of formal proceedings.

“This is a helpful acknowledgment that automatically requiring parties to take part in mediation post-issue, notwithstanding the fact that parties have done so pre-issue, may discourage genuine efforts to resolve disputes via mediation before engaging in formal proceedings,” said Seymour.

Jones added: “By addressing specific areas of litigation and introducing new protocols, the CJC aims to create a more efficient, fair, and accessible system for all parties involved. The responsibility now lies with the Civil Procedure Rule Committee (CPRC) to consider the implementation of these recommendations.”