Moving away from "one-size fits all" approach to pre-action conduct

One of Lord Justice Jackson's recommendations was that the practice direction on pre-action conduct (PDPAC) should be substantially repealed and replaced by a more general obligation to engage in appropriate pre-action correspondence and exchange of information, with costs sanctions used to curb unreasonable behaviour. This recommendation has been taken forward by the Civil Justice Council, which is leading a working group to review the pre-action protocols.

A draft of a new general protocol for pre-action conduct has recently been presented to the Civil Procedure Rule Committee. The group is also considering whether the specific pre-action protocols might be made shorter and clearer, and whether there might be scope for some rationalisation. We expect that any changes are likely to be timed to coincide with the general implementation date for the Jackson reforms, currently anticipated for April 2013.

The PDPAC was introduced from April 2009 and applies to all cases which do not fall within any of the specific pre-action protocols (which cover, for example, construction and engineering, professional negligence, judicial review, defamation, and personal injury claims). In his review of civil litigation costs, Lord Justice Jackson was critical of the PDPAC, pointing out that it often leads to delays and to pre-action costs being incurred unnecessarily, particularly in large commercial claims, because of its "one size fits all" approach (click here for our summary of the key recommendations relating to commercial claims).

The new draft protocol largely replicates the key principles of the PDPAC, but without setting out the more detailed provisions found in the PDPAC. In particular, the draft states that, unless it is inappropriate or impracticable, before starting proceedings:

• the parties should exchange sufficient information to allow them to understand each other's position and make informed decisions about settlement and how to proceed;
• the claimant should set out details of the matter in writing by sending a letter before claim to the defendant;
• the defendant should give a full written response within a reasonable period (which will vary depending on the nature of the dispute); and
• the parties should make appropriate attempts to resolve the dispute, and in particular consider the use of an appropriate form of ADR.

The draft also states that the parties should act in a reasonable and proportionate manner in all dealings with one another, and the costs incurred in complying should be proportionate to the complexity of the matter and any money at stake. Where a party has not complied with the protocol, the court may (as currently) make an order for costs against it or deprive it of costs it would otherwise have recovered.

It remains to be seen whether the more general drafting of the protocol will lead to a change in approach, or whether parties (and indeed judges) might look back to the more detailed provisions of the PDPAC as a guide to what should be considered a reasonable pre-action process.