In a previous article on reforms to civil litigation, we looked at the expanding use of fixed costs. This month, we will consider the Civil Justice Council (CJC) review of pre-action protocols.
If you have studied one of our courses covering this area, you may recall that a protocol sets out what must be done in a claim before any legal proceedings commence. There are currently 17 specific protocols in force that apply to a wide range of claims, including:
- Personal injury
- Professional negligence
- Construction disputes
- Housing disrepair
- Package travel and debt claims
Even when there is no specific protocol for a particular type of claim, you are still expected to follow the Practice Direction on Pre-Action Conduct.
All the protocols are designed to encourage the exchange of information, help parties potentially avoid litigation by settling claims and, where settlement is not possible, help manage cases efficiently. If a party fails to comply with a protocol, the court has a wide range of powers to impose penalties in the form of orders relating to legal costs and interest.
The reason the review has been called is to consider whether the protocols are working effectively and fulfilling their main purpose of reducing the cost of litigation. There are some aspects that the CJC are particularly interested in, including:
- Whether there are any aspects of the protocols that can be streamlined.
- What inconsistencies may exist between protocols, and whether these can be reformed or justified in some types of litigation.
- How much it costs to comply with the protocols – an important issue for litigants with limited means.
- How effective protocols may be if used as part of the digitisation of the justice system.
- Whether protocols should be used with online dispute resolution, which is a new way to settle claims that may be introduced soon.
While the review of the use of protocols is welcome (the system has been in place for over 20 years), the scope for wholesale reform seems unlikely. Many of the current steps that the protocols demand are simple and cheap to comply with, for example, sending letters before action, allowing a reasonable amount of time to respond and narrowing the issues in dispute by exchanging documents at an early stage. These steps are all sensible, simple and cheap ways to increase the chances that potential claims can be settled without the need for full-blown litigation.
We will report back when the CJC has completed their review into protocols. In the meantime, this review is only part of a wider agenda for reform which we will return to in future updates on:
- The simplification of the Civil Procedural Rules
- The use of damage-based agreements (DBAs)
- The use of online dispute resolution systems (currently known as the Damages Claims Online scheme)
Article by Seamus Ryan