On 15 November 2021, the UK’s Civil Justice Council (CJC) published an interim report consulting on pre-action protocols (PAPs). It provoked considerable discussion among insurers and solicitors alike. Its main focus was on the role of PAPs in the contemporary civil justice system, including their role in an “increasingly digitalised justice system”. The consultation closed in January 2022 and the CJC’s long-awaited response has been published. The CJC’s role is to make policy recommendations to the Civil Procedure Rule Committee (CPRC), who are responsible for drafting the PAPs. In some parts, the report has suggested possible text, but whether it is adopted is the decision of the CPRC themselves.
Given the clear potential impact of any recommendations by the CJC on the legal industry and insurers/insureds alike, CMS responded to the consultation with interest.
The CJC prepared its Final Report, Part 1, on 21 August 2023. It decided to split its response to the consultation into two parts; phase 1 (the report published on 21 August 2023) which focuses on “the role of PAPs in the civil justice system… the potential benefits of digitalising pre-action processes, and the place and content of the Practice Direction on Pre-action Conduct”. Phase 2 will deal with the potential reform of area specific PAPs. The report acknowledges that, should reforms be required to area specific PAPS, expertise from within those professions will be required.
Much of the phase 1 final report addresses whether or not the current Practice Direction on Pre-Action Conduct should be replaced with a new General PAP which would apply to any case not falling under one of the existing litigation-specific PAPs. The CJC had proposed that, not only should such a general PAP be introduced, but that defendants should be allowed no more than 14 days to respond to a letter of claim (with the ability to extend by a further 28 days if additional evidence was required). Our response to the suggestion was a resounding no – we considered that the idea that expert evidence could be obtained within such a short deadline smacks of academic, rather than practical, experience. The report states that “in a salutary reminder of the gap that can open up between law on paper and law in practice…” it had gone “back to the drawing board”, concluding that the general PAP should instead require acknowledgment within 21 days and a full response within 90 days. However, the acknowledgement should, it concluded, identify what additional information the defendant required and, if a related entity was the correct defendant, identify it.
The CJC had also proposed aligning the response times under the construction and engineering PAP and professional negligence PAP with their proposed general PAP, suggestions we and others opposed vigorously. Whilst we await the phase 2 final report, we are confident that such proposals are now recognised as entirely unrealistic.
A further suggestion was that parties be required to prepare a joint stocktake report prior to issue, in which they would set out the issues on which they agreed, disputed and their respective positions. Whilst there is clearly merit in focusing the parties’ minds on the issue between them, a tight timeframe would likely make the requirement unworkable and ineffective. The report states that “there was general consensus that the current proposed timeframes for completing the stocktake were too tight and that they should be extended in order that the various steps are carried out and completed effectively”. The report goes on to suggest that the timeframe should be increased from the recommended 14 days to 28 days, as we and others had recommended.
The report recommends that “compliance with pre-action protocols be made formally mandatory”, with certain narrow exceptions to accommodate, for example, expiring limitation periods. Quite what “formally mandatory” means, as opposed to merely “mandatory”, is not entirely clear. In our response we had cautioned against raising the PAPs to the same status as the Civil Procedure Rules themselves. We considered they were de facto mandatory in any event, given the significant powers available to judges to penalise non-compliance should litigation subsequently arise. The problem, we felt, was a failure to utilise available powers.
Addressing the evolving digital justice system, the report considers online portals and their relationship to the evolving PAPs. The consultation asked for comments on online pre-action portals for all cases where there is an online court process and linking the systems so that the information exchanged through the PAP portal will be automatically accessible to the Court. There are clear advantages to such a system, so long as there are safeguards in place in respect of confidentiality and privilege.
Although the report focusses on the various mandatory PAPs and related online portals, it also considers the status and regulation of voluntary private portals. It recognises the need to ensure their processes meet the requirements of the PAPs, referring specifically in particular to formal certification of any such portal marketed as “court action ready”. The CJC recommends that the responsibility for governance of pre-action portals should rest with the new Online Procedure Rule Committee (OPRC).
A key concern of professionals regarding any online portal was the process for privileged material, including without prejudice and confidential communications. The report confirms that parties would be free to engage in such communications offline, a separate ‘WP folder’ could be utilised or there could be a default rule that all discussions are WP unless designated otherwise. However, there is a clear risk that those who are less technologically literate may inadvertently submit privileged material/confidential communications in the incorrect manner (although human error may also mean that solicitors accidentally do the same – a potential negligence claim).
Not only will procedural adjustments be necessary, consideration of the people utilising any system must also be made. Any modernisation/digitalisation of the PAPs may negatively impact those who are vulnerable/digitally disadvantaged, undermining the right to fair trial and access to justice. The report acknowledges that, for those who may find online systems difficult, the introduction of online portals may force this group of people to require guidance from legal professionals. While online processes increase accessibility for the majority, the minority could clearly be affected negatively.
The consultation also considered whether the PAPs should include mandatory good faith obligation to try to resolve or narrow the dispute. The report comments that “the obligation is solely a process-based obligation and involves no substantive obligation to settle or compromise the claim”. Introducing a clearly expressed “good faith” step may be beneficial, but the obligation implies sanctions for failing to engage which could be counterproductive. ADR should not become a burdensome, tactical exercise.
We will respond to Phase 2 as and when the Final Report Part 2 is delivered – it is awaited with interest. The full Final Report Part 1 can be found here.