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‘Stocktake’ requirement before heading to court discussed by civil rule-makers

By John Hyde >>

(16 November 2021)

Arequirement to do a formal ‘stocktake’ before issuing civil proceedings – as well as potential penalties for those who ignore this – are among the proposed changes being discussed for pre-action protocols (PAPs).

The Civil Justice Council this week published its interim report into PAPs ahead of a consultation on which of its proposed reforms should be recommended.

Key options being canvassed include formally recognising that compliance with PAPs would be mandatory, with a requirement on both parties to complete a report or list of issues as a final step before the start of proceedings. This could be introduced alongside expanded powers for the courts to apply a ‘more robust, consistent and timely’ approach to non-compliance with protocols.

A procedure for automatically determining costs could also be introduced for disputes that are resolved at PAP stage.

The report says that a formal stocktake requirement can play a ‘useful role in transforming the efforts that parties have put into outlining and then resolving or narrowing their dispute, into more streamlined and proportionate litigation if litigation is necessary’. Taking a step back to consider issues before proceedings would act as a ‘pivot point’ between fair settlements and proportionate litigation, the report states.

Many of the discussions are around making the process easier for litigants in person. A simple step may be to make PAPs more user-friendly through greater use of non-technical language and by providing more information about pre-action processes.

But there are also suggestions that a new general protocol with concrete time frames and disclosure standards might be required, which would be the default protocol where no litigation-specific protocol applied, and which could be used by any LiP unsure about the steps needed in their dispute.

On sanctions, the report suggests that the court should be able to strike out a claim or defence in ‘grave cases of non-compliance’ with protocols, and a decision on whether to impose a sanction should be taken at the start of the proceeding, not the end.

In a potential conflict with case law established in Barton v Wright Hassall, where the Supreme Court ruled against treating an LiP as a special case, the report says ‘due leeway’ should be given to unrepresented parties where non-compliance is a result of a lack of legal knowledge.

As part of the review of pre-action protocols, started late last year, the CJC established a main working group and three subcommittees to deal with personal injury, housing and judicial review respectively. The report stresses that no recommendations are being made at this stage, but the aim is to consult as widely as possible and set out reform options for the Civil Procedure Rule Committee. The consultation ends on 24 December.

(Courtesy: The Law Society Gazette)