The Civil Justice Council ("Council") has launched a consultation on the pre-action protocols of the Civil Procedure Rules ("Protocols"). The Protocols apply to court actions brought in England & Wales. The Council's aim is to consider the role of the Protocols in the modern, increasingly digital legal system, and to propose reforms.

Why Protocols?

The Protocols are a relatively modern (in judicial terms) feature, first introduced as part of Lord Woolf's vision for the new Civil Procedure Rules in 1999. If implemented correctly, the expectation was that the Protocols would promote early and low-cost settlement, providing a proportionate dispute resolution for parties.

Parties are expected to follow the Protocols, with regards to pre-action initial correspondence between the parties and disclosure of key documents, as well as considering Alternative Dispute Resolution ("ADR"). Parties are expected to be reasonable, pragmatic and proportionate in their pre-action conduct.

Although compliance with the Protocols is not compulsory, a party which does not behave in accordance with them can nonetheless face real consequences. These may include being ordered to comply with the Protocols before being allowed to proceed any further with a case and/or costs sanctions.

Proposed reforms to the Protocols

The Council has set out a number of potential reforms, including:

1. Making compliance with the Protocols mandatory (expect in urgent cases).

2. An obligation on the parties to act in 'good faith', to include engaging in formal ADR as well as informal without prejudice negotiations.

3. The parties to 'stocktake' before issuing proceedings – an example template stocktake report has been included in the consultation.

4. A 'summary costs' procedure for cases that are resolved without court action. Parties can incur substantial costs on a dispute even if it is resolved at the pre-action stage, and the current lack of a formal process for dealing with such costs can act as a disincentive to early settlement.

5. More court powers for dealing with non-compliance and a new process for raising issues. There is currently a concern that courts rarely use their general case management powers to deal with non-compliance.

6. Making the Protocols more user-friendly and available online via portals.

7. Concrete timeframes and disclosure standards for pre-action letters of claim and replies.

    The consultation is open until 10am 24 December 2021. The Council has asked for the submission of views on the future direction of the Protocols and the consultation questions. Responses can be submitted via an online link, accessible here and the Council's report is also available to read in full here.

    Should you have any concerns or questions about how compliance with the Protocols will impact existing litigation or how the reforms will impact future litigation, please contact our Litigation team or your usual Brodies' contact.