Evolving pre-action protocols: a new era in civil litigation

In November 2024 the Civil Justice Council published the Phase Two Report of its review of the Pre-Action Protocols. This followed the Phase One report, which was published in August 2023. While the first report dealt with the Practice Direction on Pre-action Conduct (PDPAC) and the second report dealt with the specific protocols (including those dealing with personal injury and debt claims), the completion of the CJC’s review presents a useful opportunity to take stock of the pre-action landscape and consider its place in civil litigation. 

Litigation as a measure of last resort

The importance of pre-action conduct in civil litigation can be traced back to the recommendations of Lord Woolf and the implementation of those recommendations in the Civil Procedure Rules (CPR). A core principle underpinning the CPR is that litigation should be a measure of last resort. As practitioners will be well aware, the vast majority of disputes do not require a determination by a court on the merits. Generally, a commercial settlement can be reached (or, in some cases, it becomes clear in pre-action correspondence that there is in fact no genuine dispute which would require judicial input).   

The idea that litigation is a measure of last resort pervades the CPR. For example, parties are encouraged at every stage to consider alternative dispute resolution (ADR). In fact, recent amendments to the CPR following the Court of Appeal’s decision in Churchill v Merthyr Tydfil Borough Council [2023] EWCA Civ 1416 confirm the courts’ power to order parties to engage in ADR (CPR 1.4(e)). The introduction of the CPR also heralded the introduction of the Part 36 procedure, encouraging early settlement by incentivising the making of costs-enhancing and costs-protective settlement offers, and the “real prospect of success” test for summary judgment, to discourage parties from bringing unmeritorious cases. 

The same principle underlies the pre-action protocols (PAPs), which require prospective parties to litigation to effectively exchange information prior to bringing proceedings so as to narrow the issues in dispute and, where possible, facilitate early settlement.

The public policy reasons for this are obvious in a stretched judicial system plagued by delay and where the additional investment necessary to improve the process is politically difficult to secure. It is also worth considering the issue through a professional conduct lens. Principle 7 of the SRA Principles requires solicitors to act “in the best interests of each client”. Seeking to narrow the disputed issues, considering opportunities for settlement and looking to avoid spiralling litigation costs all form part of the “best interests” calculation. 

The pre-action protocols

The purpose of the PAPs is to govern the conduct of the parties prior to proceedings being issued. The protocols require that the parties exchange information with each other, with a view to:

• Understanding each other’s position.

• Making decisions about how to proceed.

• Attempting to settle the dispute without recourse to the courts (considering ADR to assist with this).

• Supporting the efficient case management of any eventual proceedings.

• Minimising costs. 

The courts’ powers to make case management directions (CPR 3.1(4)-(6)) and orders for costs (CPR 44.3(5)(a)) are the mechanism used for enforcement of the rules surrounding pre-action conduct. A prospective claimant who fails, for example, to write a pre-action letter (or a defendant who fails to respond to one) can expect the court to consider their non-compliance when making any order for costs. 

The various practice area-specific protocols contain specific requirements applicable to that area. For example, the Pre-Action Protocol for Construction and Engineering Disputes generally requires the parties to meet with each other “to agree what are the main issues in the case, to identify the root cause of disagreement, and to consider (i) whether, and if so how, the case might be resolved without recourse to litigation, and (ii) if litigation is unavoidable, what steps should be taken to ensure that it is conducted in accordance with the overriding objective...” In a different context, the Pre-Action Protocol for Debt Claims, which applies where a business is claiming payment of a debt from an individual, requires that any pre-action letter is accompanied by various prescribed forms of documentation, including an Information Sheet which refers the debtor to various debt advisory services. 

These are not just matters to which the courts expect parties to pay lip service. Paragraph 13 of the PDPAC talks in terms of compliance “in substance” with the pre-action rules. Further, there is evidence of a trend toward greater judicial scrutiny of parties’ conduct in the pre-action phase. For example, in Jet 2 Holidays Ltd v Hughes [2019] EWCA Civ 1858, the Court of Appeal described PAPs as “an integral and highly important part of litigation architecture” and confirmed the courts’ jurisdiction to commit for contempt of court in respect of false witness statements made in purported compliance with a PAP despite proceedings never in fact being issued. 

The Civil Justice Council review

The Civil Justice Council’s Phase Two Report (the CJC and Second Report) opens with consideration of the Churchill case and its interaction with any mandatory obligation to engage in ADR at the pre-action stage. Its recommendation is that there is a non-prescriptive obligation on potential parties to litigation to engage in some form of dispute resolution process at the pre-action stage. Should the parties choose to engage in a formal process with the assistance of a third-party neutral (e.g., a mediator), the parties should be exempt from any automatic requirement to engage in post-issue mediation (with it being left to the court’s discretion whether another round of mediation or other form of ADR is required). 

The Second Report also makes a number of specific recommendations in respect of the Personal Injury, Housing, Judicial Review, Construction, Professional Negligence, Debt, and Media and Communications Protocols, as well as recommending the creation of two new protocols, one dealing with child abuse (separate to the existing PAP for Personal Injury Claims) and one dealing with multi-track litigation in the Business and Property Courts. It is proposed that this latter PAP is mandatory subject to exceptions for urgent cases, cases in which the parties had engaged or agreed to engage in an equivalent dispute resolution process, and where the parties had agreed in writing to opt out of the PAP. 

The CJC’s recommendations are now in the hands of the Civil Procedure Rule Committee to consider. While it remains to be seen whether and how the rules governing pre-action conduct will be expanded or otherwise amended, the centrality of the pre-action processes in civil litigation is surely beyond doubt.