Pre-action protocols: Civil Justice Council proposes bespoke protocol for commercial cases, including mandatory pre-action "dispute resolution process"

The Civil Justice Council (CJC) has published the second and final part of a report recommending 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.

Since 2020, a CJC working group has been undertaking a fundamental review of the role that PAPs play in the civil justice system and considering potential reforms. It issued an interim report in 2021, inviting public views on a range of tentative proposals (discussed here), and published Part 1 of its final report in 2023 (discussed here). 

As summarised previously, Part 1 of the report recommended substantial changes to the current PAP regime, including formalising the status of PAPs under the Civil Procedure Rules and making their requirements mandatory in most cases. It also proposed substantially extending the current obligations in the "default" general PAP, which applies to all cases not covered by one of various separate PAPs for specific types of claims. Those proposals included mandatory pre-action requirements to:

• engage in a pre-action dispute resolution process - with or without a third party neutral (such as a mediator) but with a default requirement for at least an inter-party meeting; and
• jointly prepare a detailed "stocktake" report summarising the parties' positions on each issue in dispute and the status of pre-action disclosure of documents.

In Part 2 of its report, the working group proposes a new general PAP specific to multi-track proceedings in the Business and Property Courts (B&PCs). This was foreshadowed in Part 1 of the report, where the working group acknowledged that its interim report had prompted “something approaching a chorus” of concerns that, to the extent that the proposals would apply to commercial and other complex litigation, they would be too prescriptive and would risk undermining the procedural flexibility that is so valued in such proceedings.  

The key recommendations regarding the proposed B&PCs general PAP are as follows:

1. Compliance should be mandatory except:

• in urgent cases (eg where there are limitation or jurisdictional pressures or a need for urgent injunctive relief)
• where the parties have already engaged in an agreed pre-action dispute resolution process (eg a contractual tiered dispute resolution clause)
• where the parties have agreed in writing to opt out.
   

2.  It should not include the obligation in the proposed default general PAP to prepare a "joint stocktake report"
    
3. However it should include the requirement that the parties "engage in a dispute resolution process with each other" before proceedings are commenced. In particular:

• The working group considered that many of the concerns previously raised about this obligation had been addressed by modifications made between the interim report and the final recommendation in Part I of the report.
   

• As in the proposed default general PAP, the draft states that "A dispute resolution process may involve, but is not limited to": mediation, early neutral evaluation, any applicable Ombudsman or other scheme, or  "a meeting between the parties, either virtually, in person, or by telephone, to discuss the scope of their dispute and ways it might be resolved." However, unlike the proposed default general PAP, it does not expressly make such an inter-party meeting a minimum requirement.         

• The report also notes that it might be necessary to issue proceedings without first engaging in a dispute resolution process "in certain cases (eg in a civil fraud claim)", though a claimant would need to explain the reason to the court.
   

4.  Otherwise, the obligations in a B&PCs general PAP - including as to the exchange of pre-action information and documents - should be broadly as proposed for the default general PAP (summarised at the end of our earlier blog post).
    

Part 2 of the report also sets out the CJC's recommendations regarding the existing subject area PAPs, including: personal injury, housing, judicial review, construction and engineering, professional negligence, debt, and media and communications.

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