Martin Partington: Spotlight on the Justice System

When Lord Woolf published his landmark report, Access to Justice, way back in 1996, one of his aims in making his recommendations for changes to civil procedure was to encourage parties contemplating litigation to put their cards on the table. This way, Lord Woolf thought, litigants might be able to come to their own settlement of the issues in dispute between them, rather than incurring the costs of an actual court hearing. Woolf argued that the courts should be the ‘forum of last resort’.

One of the methods for encouraging parties to come to the negotiating table was through the creation of pre-action protocols (PAPs) – steps that should be taken before formal legal proceedings started. Over the years 17 separate pre-action protocols have been developed for different categories of proceeding.

There have, however, been criticisms of PAPs. For example, it was argued that they created additional expense; they caused delay (both things Woolf sought to avoid); they were not effectively enforced by judges.

In October 2020, the Civil Justice Council announced that it was going to review the operation of PAPs.

According to the Press Release issued at the time: “The review will look at all aspects of PAPs including their purpose, whether they are working effectively in practice and what reforms, if any, are required.”

It went on to state that the Civil Justice Council was particularly interested in looking at how PAPs are working for litigants with limited means; the costs associated with PAP compliance; the potential of PAPs in online dispute resolution, and the potential for PAPs to be streamlined.

Although the Civil Justice Council did set out provisional Terms of Reference for their inquiry, it also said that the focus of the review was not closed. As a first step, the CJC decided to conduct a preliminary survey to obtain feedback and suggestions about what ought to be the focus of the review, and the priorities for reform. This was started in October 2020, and ran until December 2020.

The announcement of the review is at https://www.judiciary.uk/announcements/civil-justice-council-launches-review-of-pre-action-protocols/

The results of the initial survey are awaited.