The Pre-Action Protocols: hard pruning!

“Be pitiless, be ruthless; prune for fine blooms, exhibition blooms, even if you don't intend to exhibit. Never mind about the appearance of your garden, or the natural alacrity of your roses.”

Thus Vita Sackville-West wrote of pruning in her weekly gardening column for the Observer, in 1950.

The same might be said of the Civil Justice Council (CJC) exercise on a perennial feature of the civil justice landscape: pre-action protocols (PAPs). It is, if I may labour the metaphor, a root and branch examination of the purpose, place and operation of PAPs.

The PAP Consultation was published on 15 November 2021, closing on 21 January 2022.

The consultation

This Consultation is the fifth of my building blocks of reforms coming to civil justice I reviewed each, and we have reached the point where talk turns to action. The Judicial Review and Courts Bill is back in the Commons for its Report Stage on 25 January. In coming months, the new Online Procedure Rules Committee begins promulgating rules for online management of civil justice in the pre-action space.

The Working Group has a main group and three sector-specific groups looking at protocols for housing, personal injury and judicial review.

Dr Andrew Higgins chairs, with membership including Master Victoria McCloud, Associate Professor Masood Ahmed and John Sorabji (for a full list and Terms of Reference, see Appendix 1, pp. 59-60).

As with Sackville-West’s roses, this exercise is causing some alacrity – but what prompts this?

Parties should act in good faith

This is explained at para 19(ii) of Appendix 4 (p.94), the draft of a revised General PAP Practice Direction (PD). Parties should make meaningful engagement with pre-action resolution and be seen to make meaningful engagement by, for example, evidencing narrowing of issues between parties.

Good faith can be demonstrated by producing evidence of meaningful participation in the following forms of (A)DR:

• A meeting between the parties;
• Mediation;
• Neutral evaluation;
• Ombudsman schemes; and,
• Trade body ADR schemes.

Engagement in a good faith step has to be completed within 8 weeks of being proposed. I gather parties seeking to use schemes, such as the Financial Ombudsman Service (FOS), which currently take up to 4 years to resolve cases, will not satisfy the good faith requirement.

Strike out or stay for non-compliance

Long overdue is the need for early judicial review of compliance with PAPs. The revised PD spells out sanctions for non-compliance. These include orders regarding costs and interest and striking out a claim or defence – and the court is to apply them at an early stage.

Online management of pre-action phase

Another long overdue reform is to upload pre-action correspondence, documents and other evidence into a portal or platform, to which all parties have access. Nevertheless, for almost 6 years DEF has provided a pre-action platform, which protects privileged documents and secures confidentiality in an environment which is fully GDPR compliant.

Despite 81 per cent of respondents in pre-consultation in December 2020 considering conduct of pre-action should take place via a platform, concerns have been expressed because “it is not clear how confidentiality and privilege would be protected there”.

The Working Group expressly excludes such issues from its remit (Interim Report, p23, para 2.40). Furthermore, the Master of the Rolls has previously spoken of an accreditation process for private sector providers which would, no doubt, specify the architecture of such platforms and require GDPR compliance. It is pleasing senior judiciary support an approach to pre-action I devised, developed and deployed 6 years ago. Better late than never.

This reform may be quite the upgrade on current practice, as I believe most pre-action exchanges take place via unencrypted email systems.

One can see the beginnings of an appropriate specification for such platforms in LawTech UK’s excellent 2021 Feasibility Study for an ODR platform for SMEs (see section D3, pp 101-105, reviewed by me in Solicitors Journal December 2021).

The use of APIs to transfer data of unresolved cases into HMCTS portals is also hardly revolutionary, as long-established technology which will accelerate resolution of disputes.

Disclosure

Disclosure requirements are proposed for PAPs, including disclosure of known adverse documents – which, by itself, may dictate settlement in some cases.

The time for pruning is at hand, readers – watch this space!

Tony Guise is the director of DisputesEfiling.com. He is also past president of the London Solicitors Litigation Association: disputesefiling.com; Twitter: @CloudArbitrator; LinkedIn: linkedin.com/in/tonyguise