The Civil Justice Council (CJC) has completed various studies and is now seeking to establish the introduction of pre-action protocols across all actions which can be litigated in the Courts.
Well-defined pre-action protocol obligations are in place for nine areas, the better known of which are Personal Injury, Clinical Disputes, Construction and Engineering Disputes and Professional Negligence.
The CJC, wishing to introduce further pre-action protocols, has been concerned not to tamper with those established protocols and so proposes that a ‘general pre-action protocol’ be introduced, the rules of which will be applicable and obligatory, unless the dispute falls within one of the nine pre-existing pre-action protocols currently in force.
The idea behind pre-action protocols is to encourage potential litigants to make every effort to resolve their dispute prior to starting a claim. The new general protocol will require disclosure of documents and consideration of alternative dispute resolution (ADR), including arbitration.
In debt claims, the general pre-action protocol will require business claimants with potential claims against an unrepresented individual to provide the following information:-
- Details of how the money owed can be paid.
- Details of who the Defendant should contact to discuss repayment (e.g. instalments or deferment).
- Information about sources of fee debt advice.
This information will not have to be part of the initial pre-action protocol letter, but must be drawn to the individual’s attention at some stage. This proposed inclusion follows HM Court Service consultation which identified that many debtors, instead of being encouraged to engage with creditors at an early stage, tend to ignore demands until Court proceedings are issued. The general pre-action protocol requirements are aimed at encouraging engagement.
It is therefore intended to roll out pre-action protocols across the board, by expanding the requirements for parties to attempt to resolve matters without the Court’s assistance. The message for all potential litigants, therefore, will be to engage with each other at an early stage, as opposed potentially to letting matters worsen, making productive engagement between the parties more difficult later. To encourage this process, of the principle in the current pre-action protocol rules that “it is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR” will not feature under in the proposed general pre-action protocol.
The current sanctions for non-compliance with pre-action protocols are likely to be adopted into the general pre-action protocol rules.