CJC Report on Protocols
On the 21st August the Civil Justice Council published a final report (of sorts) on Pre-Action Protocols (PAP).
Two key points to note are that:
- It is the Rules Committee that is empowered to bring about change and so it is not an inevitability that recommended reforms will follow;
- A further report is to come on Litigation specific PAP.
Do not expect any immediate changes.
A key recommendation is that the overriding objective at Part 1 of the CPR be amended to spell out a duty to comply with PAP.
A draft general PAP appears at the end of the report. Emphasis is put upon having such a measure for very low value claims being of £500 or less.
The costs fraternity would surely agree with the description of Part 8 Costs only proceedings as “clunky and cumbersome”. Thought is to be given as to how this could be improved.
A final intriguing point (at paragraphs 6.14) is that primary legislation is desirable so as to generate an unequivocal right to costs in circumstances where a dispute settles without proceedings.
This report was generated as a result of the seminal decision of the Court of Appeal in JET2HOLIDAYS V HUGHES (2019) EWCA Civ 1858 where it was declared that protocols are today a fundamental part of litigation architecture. I have heard the Master of the Rolls speak passionately about how important it is to regulate pre-action activity, not least because one might helpfully avoid the need to litigate altogether.
Dominic Regan, Director of the Knowledge Hub, Frenkel Topping.
29.08.2023