CJC Pre-Action Protocols Final Report

 

The Civil Justice Council (CJC) has now published its final report following its review of Pre-Action Protocols (PAP). We previously reported on the interim report & consultation here. The CJC have been tasked with considering reforms to the Practice Direction on Pre-Action Conduct to include the creation of a new General Pre-Action Protocol as well as looking at the digitalistion of Pre-Action Procedures.  

 

As a reminder the CJC can only make recommendations and cannot make any changes to the Civil Procedure Rules. It remains to be seen what elements of these recommendations will be taken up but Sir Geoffrey Vos, Master of the Rolls is pro-active when it comes to CJC recommendations. 

 

We've set out some of the key recommendations from the report in summary form below, The recommended Pre-Action Protocols are annexed to the report and practitioners are encouraged to consider the PAPs relevant to their areas of practice.  

 

 

- Recommendations for creation of PAPs for Multi-Track claims in the Business & Property Courts and in Child Abuse claims. The BPC Multi-Track PAP will be mandatory save for specific exceptions to urgent cases, where parties agreed to engage in an equivalent dispute resolution process and where parties had agreed in writing to opt out. It will include a non-prescriptive dispute resolution obligation but not a stocktake obligation.  

 

- Where parties engage in formal pre-action ADR with a third-party neutral then they should be exempt from any automatic requirement to engage in mediation after proceedings with court retaining discretion to order mediation post issue where it is considered appropriate to do so.  

 

- Importance of ADR should be given greater prominence and explained more simply.  

 

- Stocktake process should be obligatory. Part of the stocktake exercise should include an encouragement for the parties to agree both prospective allocation and complexity band where Fixed Recoverable Costs applies. Where there are areas of disagreement at the stocktake the reasons should be recorded and should identify disagreements including on track, complexity band and vulnerability issues. The stocktake documents should be filed with the Directions Questionnaire.  

 

- There should not be a new PAP for overseas travel claims, they are sufficiently diverse and specialist so not as to benefit from a PAP. 

 

- There is a recommendation for a new specialist PAP for multi-party litigation and Group Litigation claims. The KBD had expressed the view that Practice Direction 19B was not working well.  

 

- There should be a distinct PAP for Judicial Review claims. 

 

 

- Concerning the Personal Injury PAP it was recommended that where a proposal for rehabilitation was not agreed the Compensator should provide reasons for doing so, whilst Claimants to be open about the nature of rehabilitation sought (where known).  

 

- Fatal Personal Injury cases should have a list of additional disclosure requirements such as death certificate, copy autopsy and coroner reports, grant of probate, any inquest timetable / directions and details of likely dependants.  

 

- There should be early notification of any known Magistrate or Crown Court proceedings.  

 

- Where documents which appear relevant are not disclosed then the party should provide brief reasons as to why they will not be disclosed. 

 

- The Acknowledgement to the Letter of Claim should add a requirement for the Defendant to supply the name of the liability insurer with full contact information, else it should be provided as soon as possible without waiting for the Letter of Response.  

 

- Any known vulnerabilities of any party should be communicated as soon as possible.  

 

- It should be made clear that TBC when dealing with Special Damages is generally unhelpful and as many past losses should be particularised as possible whilst heads of future loss should be identified even if TBC. Whilst it is acceptable Pre-Action to note General Damages at TBC, if Judicial College Guideline brackets can be identified then there is no merit in withholding such information.  

 

 

 

- There should be the addition of a section to address vulnerability.  

 

- When outlining disclosure requests there should be a change of emphasis to mandate disclosure of Patient Safety Incident Response Framework and Health Services Safety Investigations Body Reports and for Claimants to request any relevant coronial documents directly from the Coroner as an interested party.  

 

- Under the "Good Communication" section it should be made clear that an apology should be substantive rather than a token gesture to be meaningful.  

 

- The PAP will need revisiting in the context of the awaited low value Clinical Disputes protocol (claims £25,000 and under).  

 

 

 

- As with the PI PAP, the acknowledgement to the Letter of Claim should add a requirement to supply insurer information.  

 

- The Noise Induced Hearing Loss Protocol should be a separate Protocol and not within the Disease and Illness Claims as it currently is.  

 

- Supporting quantum documents should be provided with any pre-action Schedule of Special Damages. 

 

 

 

- Only a single Letter of Claim should be needed for a 'family' claim.  

 

- In low value holiday claims Claimants will only require the Defendant's disclosure as to whether they had a proper system in place to avoid the injuries in question. Whilst Claimants should provide disclosure of liability evidence where the Defendant believes such documents exist (distinct from causation). Reasons should be given for any non-disclosure by the Claimant. 

 

 

 

- The PAP should be amended to take into account any potential regulatory changes including with reference to the Renters' Rights Bill which poses substantial changes to the housing regulatory regime.  

 

- All of the recommendations in the previous interim report should be adopted.  

 

 

Changes have also been recommended to the Pre-Action Protocols for Media & Communications Claims, Construction & Engineering, Debt and Professional Negligence with firmer emphasis on ADR and compliance. 

 

It's clear ADR will be central to PAP reform along with greater openess between parties. The inclusion of Stocktake and in particular its relevance to prospective allocation and assignment (of complexity band) is of interest. Practitioners will need to ensure they are thinking about costs from the outset and where support is needed consult with a trust costs specialist. Our unlimited fixed costs retainer will cover assistance with these issues.