On 15 November 2021, the UK's Civil Justice Council (CJC) published an Interim Report initiating a consultation on pre-action protocols (PAPs). The consultation closed in January 2022. CMS responded to the consultation with interest, given the potential impact on the legal industry and insurers/insureds alike.
It is the responsibility of the CJC, through its designated Working Group (WG), to make recommendations to the Civil Procedure Rules Committee (CPRC). It is for the CPRC to accept or reject those recommendations and draft the revised PAPs.
The CJC's response was published in two parts. The Final Report Part 1, published in August 2023, focussed on consideration of the role of PAPs, in particular their place in the emerging digitised justice system, and whether the current PD on Pre-Action Conduct should be replaced with a new General PAP. It recommended that compliance with PAPs should be made “formally mandatory”, save for urgent cases, and that there should be a digital PAP portal or portals for any digital court process, consistent with the direction of travel towards a fully digitised dispute resolution process as envisioned by The Master Of The Rolls and others, the governance of such PAPs to fall within the remit of the Online Procedures Rules Committee (OPRC).
We commented on the Final Report Part 1 here.
The Phase Two Report (Final) (the report), published in November 2024, provides recommendations for reforms across various litigation-specific PAPs, including but not limited to those for personal injury, disease, clinical negligence, construction, professional negligence and package travel.
In summary, the report makes the following observations and recommendations:
1. Mandatory Mediation Initiatives
The report discusses the relationship between pre-action dispute resolution and mandatory mediation initiatives. It recommends that parties who engage in a formal dispute resolution process at the pre-action stage should be exempt from any automatic requirement to engage in mediation after proceedings are issued. All PAPs which include a dispute resolution obligation should be amended to make this clear.
The report references the landmark decision in Churchill v Merthyr Tydfil County Borough Council, which found that compulsory mediation does not breach the right to a fair trial under Article 6 of the European Convention on Human Rights, provided it is conducted at a proportionate cost and within a reasonable time and the parties could still access the court should the mediation be unsuccessful.
2. Pre-Action Protocol for Personal Injury Claims
The report recommends several relatively cosmetic changes to the Personal Injury PAP, including better alignment and prominence of the Serious Injury Guide alongside the Rehabilitation Code and provision of insurer details with the acknowledgment/as soon as possible.
A separate protocol for child abuse claims is recommended, but no dedicated protocol for overseas travel claims, as some respondents had called for.
It also suggests that the process for nomination of experts should be improved, being currently “wholly unsuited to claims outside the fast track”, and that there should be a clearer structure for the disclosure of documents.
Fatal claims should have a dedicated section, with a list of relevant disclosure documents.
The report notes that many respondents (including ourselves) considered that the current PAP fails to provide a level playing field in respect of disclosure relating to liability and that both sides should provide reasons for not disclosing documents which appear to be relevant. Helpfully and sensibly, the CJC also considered that claimants ought to set out what medical records they hold when writing the letter of claim and that such records ought to be released to the defendant.
3. Pre-Action Protocol for Resolution of Clinical Disputes
Similar adjustments to the language style of the PAP as were identified in relation to the Personal Injury Protocol ought to be applied to this PAP.
More substantively, when outlining disclosure requests, the disclosure of Patient Safety Incident Response Framework and Health Services Safety Investigations Body Reports (including witness statements) should be mandated, as should the requesting of full coronial documents directly from the coroner by the claimant.
The interface of the PAP with the Early Notification Scheme for Severe Birth Injury should be made more explicit.
There should be reference to the Duty of Candour and use of Apologies, “making clear that the apology should be substantive rather than a token gesture.”
It is recognised in the report that the PAP will require further review once the Department of Health and Social Care Low Value Clinical Disputes Protocol goes live.
4. Pre-Action Protocol for Disease and Illness Claims
A number of the proposed changes to the Personal Injury PAP were, unsurprisingly, felt to be equally applicable to the Disease and Illness PAP. For example, the provision of insurer details with the acknowledgement letter.
The report considers that the current Annex E, dealing with Noise Induced Hearing Loss claims, should ideally form a separate PAP.
Section 8 of the current PAP requires the claimant to send the defendant a schedule of special damages, with supporting documents, as soon as possible. The report expresses surprise that this is only required when liability is admitted. In fact, the current wording states: “particularly where the defendant has admitted liability”, not only where that is the case. Helpfully, the report recommends that the PAP require the claimant to identify all provisional heads of loss, “provided that there is reassurance and a caveat that the requirement is to use reasonable endeavours and to update the information when it is possible to do so.”
5. Pre-Action Protocol for Construction and Engineering Disputes
The report recommends retaining the current timeframes for the Construction and Engineering PAP rather than aligning the time limits with those which had been proposed for the new General PAP (originally,14 days with a right to extend to 28 days). Cue collective sigh of relief from practitioners.
The Phase 1 Final Report had, in any event, revised the General PAP time limits significantly in light of less than enthusiastic responses from all quarters, landing on a recommendation that the defendant acknowledge within 21 days and provide a full response within 90. It is accepted in the report that the current timeframes were “working well.”
As with other PAPs, engagement should be made mandatory (a general recommendation in the Final Report Part 1), subject to limited exceptions and the existing right in the particular PAP to opt out by mutual consent.
The Protocol Referee Procedure should be retained “as a tool to enforce compliance” with the PAP.
The CJC was persuaded that introducing a formal standard disclosure risked a substantial front-loading of costs and so risked undermining the principle of proportionality. That idea has been dropped following opposition from “the vast majority of respondents.”
The reports also suggests minor amendments to enhance the role of dispute resolution and to clarify the consequences of non-compliance.
6. Pre-Action Protocol for Professional Negligence
The report recommends retaining the current timeframes for the Professional Negligence PAP (“The current timeframes work well for the parties”), but suggests adopting the more structured stocktake procedure set out in the revised General PAP.
It also recommends expanding the explanation of dispute resolution procedures and clarifying the consequences of non-compliance, with specific reference to be made to the courts’ powers to penalise the parties in costs/stay proceedings for non-engagement with a dispute resolution procedure.
The report emphasises the importance of early and full disclosure of documents and the need for clear communication between parties.
In addition to the PAPs referred to above, the report also provides recommendations in relation to the PAPs for Pre-Action Protocol for Resolution of Package Travel Claims, Housing claims, Judicial Review, Debt Claims and Media and Communications Claims, as well as providing a new proposed PAP for Multi-Track Litigation in the Business and Property Court.
7. Pre- Action Protocol for Resolution of Package Travel Claims
The report recommends that the PAP make clear that a single letter of claim only is required for “family” claims.
It is also felt that, “in a relatively low value holiday claim”, in order to deal with merits, initially the claimant only requires disclosure of documentary evidence on system to avoid injury.
Observations made in relation to the Personal Injury PAP regarding liability disclosure are felt to be equally relevant here: “…if the defendant believes the claimant has relevant documents on liability (as distinct from causation) they can reasonably expect these to either be disclosed or some reason provided as to why the claimant considers that is not appropriate.”
Conclusions
The recommendations are, generally speaking, pretty underwhelming.
The peculiar proposal that construction and professional negligence claims be subject to a response time of 14 days, with the possibility of extending to 28, has been dropped entirely, with the revised General PAP itself amended in the Final Report Part 1 to provide a more sensible timeframe for response on liability.
Efforts to clarify the language and improve consistency of presentation are plainly sensible. The recommendations in relation to enhancing the prominence of ADR are in tune with the general mood music around dispute resolution and are generally unobjectionable provided the parties engage sensibly. In relation to the various personal injury PAPs, changes aimed at levelling the disclosure playing field are very welcome.
Two new PAPs have been recommended, one dealing with Child Abuse Claims and another for claims on the multi-track in the Business & Property Courts, with the additional observation that annex E of the Disease and Illness PAP should be hived off as a separate Noise Induced Hearing Loss PAP.
It is now for the CPRC and (where relevant) the OPRC to consider both parts of the CJC’s Final Report and decide how best to take forwards the recommendations made.
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