Civil Justice Council proposed reforms to pre-action protocols include controversial ADR provisions

Recent Civil Justice Council proposals for reforms to the civil pre-action protocols (PAPs) have sparked some concern that, if they are intended to apply to commercial disputes via a default general protocol, they would represent a departure from current practice and a significantly more prescriptive approach.

Amongst the more controversial suggestions is the introduction of a “good faith obligation to try to resolve or narrow the dispute at the pre-action stage”.

This would go significantly further than the current PAP requirement to consider ADR at the pre-action stage, and would arguably amount to a mandatory ADR gateway - requiring the parties to take a “concrete step” toward settling the dispute, as a distinct stage in a series of preconditions to commencing proceedings.

In the context of the ongoing separate review into the issue of mandatory ADR, we and many other users of the commercial courts have reiterated a view that substantial commercial litigation is an area of civil justice where compelling ADR would be not only unnecessary but counterproductive to efforts to encourage out-of-court resolution.

The Law Society's recently published response to the PAP proposals also confirms that it does not support the notion of PAPs being a default mechanism for the delivery of mandatory ADR.

The hope is that the CJC's final report and recommendations will recognise the need for pragmatic flexibility in complex commercial litigation. Even then the matter ultimately rests with the Civil Procedure Rules Committee, which retains responsibility for drafting – or rejecting – any change to the pre-action protocols.

For more detail on the CJC's proposals and our commentary, see this post on our Litigation Notes blog.