The pre-action protocols are under scrutiny, but is reform needed for the pre-action protocol for personal injury?

The Civil Justice Council (CJC) has published its interim report on our current pre-action protocols (PAPs) and possible improvements. There are numerous PAPs governing pre-litigation conduct across a wide range of civil claims as varied as housing and judicial review. The CJC report considers each PAP in turn, proposing both generic and PAP-specific reforms.

The largest group of PAPs relate to personal injury claims and are the focus of this article. The personal injury PAPs provide for over 500,000 new claims a year, 80% of which resolve without involving the court, indicating a good degree of success. It is therefore reasonable to ask whether this group of PAPs requires any reform at all.

The Personal Injury PAP applies to cases which do not proceed under the low value PAPs for road traffic accidents, employer’s liability, and public liability claims. There are, in addition, separate PAPs for clinical disputes and disease claims. The personal injury subcommittee considered that the newer low value PAPs were not in need of reform.

In common with other PAPs, the personal injury PAP sets out standards which the parties are expected to comply with before resorting to court proceedings (which, it is stated, should be a last resort). It encourages exchange of information at an early stage and consideration of a form of alternative dispute resolution (ADR). Compliance is not mandatory, although failure to comply can attract costs sanctions and the Civil Procedure Rules’ “overriding objective”, and the courts’ powers to enforce it do not expressly refer to PAPs.

The following proposals from the CJC’s interim report are of particular interest in the context of the personal injury PAP:

• Making PAPs more user friendly by availability online, greater use of non-technical language, and by providing key information, documents, and templates to litigants in person.
• Making compliance with PAPs mandatory (except in urgent cases where immediate court intervention is required).
• Introducing a “good faith” obligation to encourage settlement, or at least to narrow the issues in dispute prior to proceedings. This would be non-prescriptive and could involve ADR, without prejudice discussions, or formal settlement offers.
• Requiring completion of a joint stocktake report, a list of issues setting out what is agreed and not agreed, as a final step prior to proceedings. This would also set out the position on disclosure (what has already been disclosed and what is still being sought).
• Introducing new processes for raising compliance issues to facilitate a more robust, consistent, and timely approach to non-compliance with PAPs.

The personal injury subcommittee expressed the view that any reforms to the personal injury PAP should be approached with caution. It was, however, agreed that improved co-operation and modernisation of format (including layout, style, and wording) would be beneficial.

One of the main reasons why the personal injury PAP is so successful is likely to be because both parties are usually represented. However, litigants in person are not uncommon, and defendants are likely to welcome clearer guidance, with less technical language, and example documents and templates for these claimants. Providing guidance and hand-holding a litigant in person through the pre-action process is often something which falls to a defendant and can be time consuming, increasing costs which cannot be recovered. There is often also an imbalance between the parties given that a litigant in person often lacks understanding. Therefore, making the PAPs more accessible in all respects is likely to be of benefit to both parties.

The proposals to formally recognise compliance with the PAP as mandatory, the introduction of the good faith obligation, and the requirement to carry out a joint stocktake are likely to be welcomed by defendants. It is not uncommon for claimants to issue proceedings prematurely, for example, without having engaged in settlement negotiations, either properly, or at all, simply to increase their costs. In those circumstances, the defendant is not always successful in arguing for reduced costs or another sanction to penalise poor conduct. Making the joint stocktake exercise mandatory and having a more robust and consistent approach to non-compliance would seem to be a way of preventing this from happening. Of course, whether this could result in disproportionate costs being incurred in lower value claims is a consideration and it might be that a non-prescriptive stocktake requirement is preferable, allowing parties to carry out an exercise which is proportionate to the dispute.

Although measures to improve compliance with the PAP are likely to be welcomed by defendants (who frequently face poorly particularised claims and receive little or no pre-action disclosure), introducing sanctions against parties for non-compliance is controversial and arguably a step too far.

That aside, a number of the CJC proposals seem sensible, reinforcing and strengthening the existing principles of open communication between parties and the importance of alternative dispute resolution (in its wide range of forms). The proposals appear as though they should streamline the litigation process (should court intervention become necessary) due to the emphasis on narrowing the issues and introducing mandatory steps before litigation. Of course, not all cases are capable of resolution pre-action, but there should be very few cases where it is not possible to at least narrow some issues pre-litigation. Ultimately, more focused litigation will be of benefit to all concerned, particularly in terms of legal costs.

It is of course very early days, and careful consideration of the practical implications of the proposals will be necessary to determine whether they will indeed be beneficial to personal injury disputes. However, it does seem that there is scope for improvement in the already well-functioning personal injury context.

The CJC working group would like to hear from respondents with their views on the proposals, and the report initiates a consultation which will be open until 10am on 24 December 2021. The report itself, which includes the consultation questions, can be accessed via the Courts and Tribunals Judiciary website and responses can be submitted here. It will be interesting to see what follows. Watch this space…