Change ahead – Reforms on Pre-Action Conduct

What you need to do before you take matters to court

Before anyone can bring a claim to the UK Civil Courts, there are certain steps that must be taken to demonstrate to the court that you have taken reasonable action to try and resolve things yourself. These steps are called Pre-Action Protocols and are intended to ‘’explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings’’.

If your dispute has no case-specific Pre-Action Protocol, then the Practice Direction Pre-action Conduct applies. There are specific Pre-Action Protocols for various types of claims such as:

• Pre-Action Protocol for Personal Injury Claims
• Pre-Action Protocol for the Construction and Engineering Disputes

What happens if I haven’t completed these steps?

There can potentially be serious consequences for both claimants and defendants for failing to comply with the Pre-action Conduct and Protocols or any relevant protocol to a claim. These can include the Court not allowing your claim to progress further until there has been compliance, and you may also incur additional cost penalties.

The future of Pre-Action Protocols

In November 2021 the Civil Justice council (CJC) considered a review of the Pre-Action Protocols, thinking about the role Pre-Action Protocols should play in the civil justice system in the 2020s particularly in a justice system which is increasingly digitalising.

Three major reforms considered are:

• Making all Pre-Action Protocols available online via portals

This would also include ensuring the portals are electronically joined up to the relevant court so that non-confidential pre-action exchanges, including pre-action letters of claim and replies would be accessible to the court if the matter progresses to litigation.

Linking online portals on pre-action compliance to digital court process will allow the courts to have access to the pre-action correspondence and documents exchanged between parties and may also be able to provide parties with a secure platform in which they can freely explore settlement options.

• Introducing a good faith obligation

This would try to resolve or narrow the dispute at the pre-action stage. Options for a good faith obligation could include engaging in formal alternative dispute resolution (ADR) processes, informal negotiations between the parties, or formal settlement offers.

Does the introduction of compulsory ADR conflict with Article 6 (the right to a fair trial) of the European Convention on Human Rights? The future obligation of compulsory ADR must provide a balance of being able to effectively resolve disputes with the option of being able to return to the normal court process. The CJC believe the civil justice system is far off from being able to offer regulated and timely ADR processed to all prospective litigants, and until they are available, any good faith obligation to resolve a pre-litigation dispute should be non-regulatory.

• Formally recognising compliance would be mandatory with Pre-Action Protocols

Compliance could become mandatory except in urgent cases where immediate court action is necessary.

Extending the courts power for compliance issues will enable a more consistent and timely approach to non-compliance with Pre-Action Protocols. For example, the current Practice Direction on Pre-Action Protocol expressly gives the court power when considering a costs order to consider if there has been an unreasonable offer to refuse a form of ADR. However, there is inconsistency case by case in the way in which the courts apply this power.

The CJC have suggested formalising the process for raising compliance issues by introducing a separate directions questionnaire on compliance or requiring parties to apply to the court for sanctions to be imposed for non-compliance. It has also been suggested a decision by the courts on whether to impose a sanction should be taken at the start of proceedings rather than the end.

Revolutionary or evolutionary?

The reforms build on the existing rules and procedures set out in the current Pre-Action Protocols. However, the proposed reforms attempt to provide more concrete guidance, consistency and accessibility with the integration of technology for pre-litigation matters. Encouragement of early exchange of information and settlement is greater than before with the mandatory use of online protocol portals and a form of ADR before a claim could be bought.