Civil Justice Council begins pre-action protocols consultation

Out-Law News | 15 Dec 2021 | 10:00 am |

The Civil Justice Council (CJC) has launched a public consultation on proposed reforms to pre-action protocols (PAPs) in England and Wales, to help maintain their effectiveness in an increasingly digitalised justice system.

PAPs set out the steps that parties to a dispute should take to explain their respective positions and to refine or resolve areas of disagreement in order to avoid formal court proceedings.

In its interim report (164-page/5.33MB PDF), the CJC outlined the proposed changes, including making all PAPs available online via portals, and formally recognising that PAP compliance is mandatory - except in urgent cases where immediate court intervention is necessary.

The reforms would also introduce a good faith obligation to resolve or narrow the dispute and a requirement for the parties to complete a joint stocktake of issues to help the court if the dispute goes to litigation.

The changes would also expand courts’ powers for raising non-compliance issues, and make PAPs more user friendly by reducing technical language and providing information about the pre-action and litigation process to parties who are not legally represented.

The consultation runs until 24 December and responses can be provided using this form.

Simon Plunkett, construction litigation expert at Pinsent Masons, said: “A particularly important area for consultation is whether pre-action letters of claim and replies should be supported by statements of truth.”

“This could place an additional burden on parties to a dispute to fully investigate and scrutinise the strength of their case and only advance arguments that they are absolutely confident they can sustain. This additional scrutiny could lead to a front-loading of time and costs,” he said.

“The consequences of falsely signing a statement of truth are very serious, and proceedings for contempt of court may be brought against a person who makes, or causes to be made, a false statement,” he said.