Civil Justice Council publishes the final report in its review of Pre-Action Protocols
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Legal Development 28 November 2024 28 November 2024
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UK & Europe
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Regulatory risk
The Civil Justice Council (CJC) began its review of Pre-Action Protocols (PAPs) in England & Wales in November 2021 and, three years later, in November 2024, published its Part 2 Report, which marks the conclusion of the project.
This latest report - described as “short” despite stretching to 59 pages - makes a series of recommendations for reforming most of the existing PAPs and it recommends the introduction of two new PAPs: one for child abuse claims and one for multi-track claims in the Business and Property Courts (a draft version of which is appended to the report). A key theme of the report is set out in its executive summary:
“pre-action protocols play a crucial role in facilitating proportionate dispute resolution in a justice system where very few cases ever require judicial adjudication on the merits”.
This update focuses principally on recommendations made regarding those PAPs that apply to personal injury claims.
Mediation & (alternative) dispute resolution (ADR)
Before setting out recommendations to amend specific protocols, the CJC first tackles the general issue of mediation in civil claims. It does so because of the Court of Appeal’s 2023 decision in Churchill v Merthyr Tydfil that compulsory mediation, ordered by a court, does not constitute a breach of the right to a fair trial (subject to the parties being able to access the court if the mediation fails). The report notes that the Civil Procedure Rules (CPR) were updated with effect from 1st October 2024 to reflect the Churchill principle.
The obvious difference between the PAPs and Churchill is that the latter applies after proceedings have been issued whereas the former seek to control behaviour before that stage. Given that one of the aims of PAPs is to narrow areas of dispute and to promote early resolution, the report points out that “there is a risk of unnecessary duplication were parties automatically required to engage in mediation both before and after issuing proceedings”. For this reason, the first general recommendation in the report is that parties who engage in a formal ADR process at the pre-action stage should be exempt from any automatic requirement to do so after proceedings are issued.
PAPs governing personal injury claims
Chapter 3 of the report dealing with these is only 8 pages but is the longest part of the report. It makes a series of sparsely drafted recommendation across the main injury PAPs i.e.: injury generally, clinical negligence, disease and illness, and package travel.
It may be significant that the first substantive recommendation of this chapter is to repeat a previous recommendation that “A separate Protocol for child abuse claims is prepared”. This possible development has seen some false starts in the past and it is not clear at this stage whether meaningful progress will be made following the new report. Although there is a degree of consensus among practitioners on the need for a bespoke PAP for these claims, what is less clear is whether policymakers beyond the CJC would support such a development as a priority.
It should be noted that the CJC does not address the low value claims PAPs that were introduced by the Ministry of Justice in 2010 for fast track motor injury claims and in 2013 for fast track employer’s and public liability claims. The demarcation is important.
The report notes that the general PAP for Personal Injury Claims was introduced before the low value PAPs and it (the former) was designed (in the late 1990s) for fast track claims in the main. For these reasons, the report emphasises that the general PI PAP is in fact now the only PAP for higher value claims and it sensibly recommends that the text should be revised to make this subtle shift in scope much clearer.
Other drafting recommendations deriving from the age of the PI PAPs include: adding a new section emphasising the need for good communications between the parties, identifying the need to “refresh” the texts, given that the PAPs are "overly 'wordy’", and a re-ordering to move exclusions from scope to an appendix. In addition, a “slicker process” for updating the PAP is recommended.
Substantive reforms to the general PI PAP
The report makes a number of recommendations on the substance of the PAP, the more significant of which are summarised below.
| Issue | Recommendation | Comment |
|---|---|---|
| Related, non-PAP, guidance |
There should be more prominence for, and better alignment with, both the Rehabilitation Code and the Serious Injury Guide. |
If this moves forward it will be necessary to be clear on the boundary between the PAP and other initiatives which may operate effectively in practice outside court oversight. |
| Rehabilitation |
Greater clarity about rehabilitation is recommended, with the proposal being that claimants should be encouraged to be more open about what they are seeking and compensators encouraged to provide reasons if they are refusing. |
This appears to be a pragmatic recommendation and should further the objective of good communication between the parties, although the risk is that the proposals could become areas of secondary disputes. |
| Fatal claims |
To insert a new section about these claims, to include standard lists of disclosure requirements (e.g. death certificates, coroner’s reports, inquest material, known dependants). |
This could assist in speeding up liability and quantum decisions in Fatal Accidents Act claims. |
| Acknowledgment of letter of claim |
The acknowledgment should require the defendant to pass on liability insurance details as soon as these are identified. |
A practical suggestion that implicitly recognises that requiring insurance details as part of the acknowledgment would be unrealistic. |
| Details of losses claimed |
The section on special damages should require (a) particularisation of past losses as far as possible and (b) identification heads of future losses, even if details are marked ‘TBC’. |
Another practical proposal which notes that “disclosure of such information as the claimant has available without heavy frontloading of work” on quantum before acceptance of liability is likely to “ensure adequate reserving and allocation of claims to the relevant seniority of claims handler”. |
| Third party sources |
A “vast majority” of consultees favoured exploring initiatives with third parties, such as HMRC, on timescales for providing relevant documents / materials and thus reducing delay. |
The report concluded that “it was not possible to identify a body that could lead on this work”. This is disappointing. It seems entirely conceivable that the Ministry of Justice and HM Treasury could progress this, if resources were available. |
| Vulnerability |
It is recommended that there should be “an exhortation” to detail any known vulnerabilities. |
It is important that vulnerability is recognised. The 2023 fixed recoverable costs regimes allow for the recovery of additional costs due to vulnerability. However, the wide definition of vulnerability brings a real risk of higher costs attaching to significant numbers of claims. |
| Stocktake |
To introduce a template for this phase, which would include encouragement to agree court track, complexity band, and any vulnerabilities and to give reasons if these are not agreed. |
A practical proposal which, by implication, suggests attempts to agree tracks and bands should also feature at earlier phases in the PAP (see ‘vulnerability’ immediately above). |
PAPs for specific types of injury
| Relevant PAP | Recommendation | Comment |
|---|---|---|
| Clinical Negligence | As in the general PAP, there should be a new section on “good communication” between the parties. This should refer to the statutory duty of candour (introduced after this PAP) and the use of apologies under the Compensation Act 2006 and Saying Sorry initiative of 2018. |
The report stresses that apologies should be substantive and not merely “a token gesture”. The use of apologies in civil claims generally was the subject of a consultation run by the Ministry of Justice in Q2 2024. At the time of writing, a formal government response to submissions made was still outstanding. |
| Disease and Illness |
The CJC recommends that the section Noise-Induced Hearing Loss claims should be removed to a standalone PAP. It also recommends widening the requirement to provide a schedule of special damages beyond clams in which liability is admitted. Overall, the CJC that this PAP “is easier to navigate than the older ones, and therefore does not require so much redrafting.” |
These are practical recommendations which would appear unlikely to prove difficult to implement. |
| Package Travel |
This PAP is restricted to gastric illness claims in resort and only modest recommendations are made. There is no proposal to create a new PAP for other overseas injury claims, the reasons for which are set out in the column to the right. |
“There is no pressing need for a dedicated Protocol dealing with overseas travel claims [which] are generally dealt with by specialist practitioners and are sufficiently diverse to likely not benefit from being straightjacketed into a single new Protocol.” |
Group litigation
The chapter on personal injury PAPs ends with a short passage recommending that there should be a new PAP for Group Litigation Orders (GLOs) made under CPR Practice Direction 19B. This was not something on which views were sought as part of the CJC’s consultations.
The suggestion comes instead from the King’s Bench Masters (NB: the lead author of this chapter is a KB Master). In their view, the current procedures “are not working well… what is required is a new specialist Pre-Action Protocol”. A concluding comment makes the point that the proposal would need to be further explored by practitioners specialising in GLOs and by judges and other stakeholders.
The key question: will these recommendations be taken forward?
During the past three years, the CJC has delivered an impressive programme of research into the effectiveness of the existing PAPs and the options for reform. The recommendations are informed by extensive consultation with stakeholders and many result from consensus on ideas for reform and improvement.
Taking these proposals forward will be a matter for the Civil Procedure Rule Committee (CPRC) primarily. Although it may need to carry out some further consultation on points of detail, it has to be hoped that the CPRC has, or can secure, sufficient capacity and resource to bring the CJC’s proposals to refresh and re-shape the PAPs into force without undue delay. If so, we might expect to see the first developments to that end in the first half of 2025.
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