Pre-action protocols: Civil Justice Council recommends mandatory pre-action ADR but will consider a more flexible bespoke protocol for commercial cases

In a recent report, a Civil Justice Council (CJC) working group has recommended substantial changes to the regime of pre-action protocols (PAPs) which parties are expected to follow before civil proceedings are commenced in the English courts.

The thrust of the proposals is to give PAPs more "teeth" by:

• making their requirements mandatory and formalising their status under the Civil Procedure Rules - thereby expanding the courts' powers to sanction parties for non-compliance, including by staying or even striking out proceedings
• extending the current obligations in the 'default' general PAP protocol (applicable to all cases not covered by one of the separate area-specific PAPs).  Most controversially, this would include a new mandatory obligation to engage in a pre-action dispute resolution process.  That could either involve a third party neutral (such as mediation) or not  – but with a default requirement for an inter-party meeting if the parties do not agree on a different process.

However, to the extent that the proposals would apply to commercial and other complex litigation, the working group acknowledged that they had prompted “something approaching a chorus” of commercial lawyers raising concerns that they would be too prescriptive and risk undermining the procedural flexibility that is so valued in such proceedings. (See our earlier blog post for discussion of some of those concerns).  The working group therefore confirmed that, in the second part of the review, it will consider whether there should be a more flexible bespoke PAP for commercial proceedings in the Business & Property Courts.

For more detail on the CJC's report, see our Litigation Notes blog post.

Next steps

The CJC's role is limited to making policy recommendations. Whether any of its proposals are taken further will be a matter for the Civil Procedure Rules Committee to consider in due course (most likely not until after the CJC publishes the second part of its report).

Also, there are multiple other ongoing developments which overlap with this CJC workstream – particularly regarding the growing momentum toward relaxation of the English law prohibition on compelling litigants to engage in ADR (under Halsey v Milton Keynes NHS Trust [2004] EWCA 576). Those include:

• The government’s and civil judiciary’s ongoing policy drive to integrate ADR fully into the civil justice system, including by compulsion if necessary (as reflected in the recently announced new powers to compel ADR in County Court Small Claims and the Employment Tribunals).
• Developing case law regarding the status of Halsey. In particular, the Court of Appeal is due to hear an appeal in November (Churchill v Merthyr Tydfil Borough Council) which will specifically consider whether the court has power to stay proceedings to enforce the existing pre-action ADR provisions in the current general PAP – including the operation of Halsey in that context.

While the CJC’s review may be taken into account in those contexts, there is also the potential for developments to overtake the CJC recommendations to some extent before they fall to be considered by the CPRC.