The Civil Justice Council (CJC) has released the second and final part of its review on Pre-Action Protocols (PAPs), focusing on specific litigation protocols. This report, published in November 2024, builds on the interim findings and recommendations from Part 1 of the CJC’s report (published in August 2023).

Part 2 of the CJC’s report continues to highlight the importance of PAPs in settling disputes, providing various recommendations to refine and enhance the effectiveness of PAPs in the civil justice system. In short, the CJC recommends reform for litigation specific PAPs (including the Judicial Review PAP, the Debt PAP, and the Professional Negligence PAP). It also recommends the creation of a new PAP for claims on the multi-track in the Business and Property Courts.

Key points to note

The report discusses the relationship between pre-action dispute resolution and the mandatory mediation initiatives. The CJC recommends that those parties which choose to engage with alternative dispute resolution (ADR) at the pre-action phase, should be exempt from any automatic requirement to engage in ADR once proceedings have been issued. Although, it recommends that the court retains its discretion to order further ADR.[1]

Other interesting recommendations include suggestions of a distinct Judicial Review PAP to reflect the unique character of judicial review proceedings.[2] Recommendations include an enhanced good faith obligation and clearer guidelines for administrative court involvement.[3]

Proposed changes also aim to make the debt protocol more prescriptive and user-friendly, while updating the professional negligence PAP to align with current legal practices. 

Particularly relevant for commercial litigators is the recommendation for a new PAP for multi-track claims in the Business and Property Courts with a non-prescriptive pre-action dispute resolution obligation.[4] This means that while parties are required to engage in some form of dispute resolution before initiating court proceedings, the specific method and structure of this resolution process are not strictly defined. A draft B&PC multi-track PAP can be found at Appendix 1 of the report.

Implications for legal practice

The CJC’s recommendations aim to reduce the number of cases proceeding to court, saving time and resources for both parties. The focus is on more efficient case handling, reducing delays and improving overall case management. The CJC’s focus on accessibility and modernisation reflects broader trends towards a more digitised and user-friendly legal system. For clients, this should (the CJC hopes) mean a greater likelihood of achieving a satisfactory resolution without unnecessary delays or costs. By fostering early settlement and providing clearer guidelines, the new PAPs should also enable clients to navigate the legal system with greater confidence and ease.

For a detailed understanding, you can access the full report here.

[1] Paragraph 2.3

[2] Paragraph 5.2

[3] Paragraphs 5.4 - 5.8

[4] Paragraph 10.9