The CJC published Part 1 of its final report into the role of Pre-Action Protocols (PAPs) this week.

Civil Justice Council publishes final report on Pre-Action Protocols - Courts and Tribunals Judiciary

PAPs provide norms of conduct for parties to prepare their cases for the court system and play an increasingly important role in the civil justice system. 

Indeed, the report emphasises that they are “designed to help people understand that most legal disputes do not require court adjudication for the dispute to be resolved satisfactorily.”

So what changes, if any, can we expect to see on the horizon for those involved in high value complex claims?

  • A bespoke PAP for high value commercial litigation could be on the cards. Criticisms of the CJC’s proposals to the General PAP in its interim report were said to be too prescriptive and risked undermining the flexibility currently offered in the PD-PAC. The CJC accepted that flexibility and prescription will vary across different types of litigation and confirmed that Phase 2 of the review will consider whether there should be a bespoke PAP for high value commercial litigation.
  • Concrete obligation to engage in ADR even in high value commercial litigation is still needed in high value commercial litigation. The CJC remained sceptical of the claim that this would be undesirable in high value commercial litigation on the grounds that the parties are sophisticated, well advised, and already understand the benefits of ADR. 
  • Joint Stocktake / List of Issues. The report favours an additional step which entails the parties reviewing their positions and providing a joint list of issues prior to starting court proceedings. This stage won’t replace the pleading process, but the CJC noted it could be “valuable in improving the pleading processes in commercial and other complex litigation”. The report draws support from Australia where ‘Concise Statements’ were apparently developed out of judicial frustration that sophisticated commercial parties could waste significant private and public resources arguing arcane pleading points that did not address the real issues in dispute.
  • A requirement to acknowledge the pre-action letter of claim within 21 days. The proposals for the General PAP will require defendants to provide a letter of acknowledgement within 21 days of receipt of the claimant’s pre-action letter of claim, and a full response within 90 days of receipt of the pre-action letter of claim. 
  • Option of relying on pre-action letters of claim, replies and the stocktake report in place of pleadings? Many of the respondents working in high value commercial litigation thought this would not be workable for substantial commercial cases. What was decided? The CJC concluded that whether certain PAP steps could stand in place of pleadings needs to be answered on a PAP-by-PAP basis. Watch this space!

Change to the pre-action stage is on the cards. Parties engaged in a high value dispute need to be mindful of the obligations to comply with PAPs and given the timescales involved consult a specialist dispute resolution team at the earliest possible stage.