The Civil Justice Council has for some time been reviewing the Pre-Action Protocols (PAPs) contained within the Civil Procedure Rules and has recently published Part 2 of its final report, following on from Part 1 which was published in August 2023. (Part 1 can be accessed here and Part 2 here).

The PAPs reviewed included the Personal Injury PAPs, namely the:

• Pre-Action Protocol for Personal Injury Claims
• Pre-Action Protocol for the Resolution of Clinical Disputes
• Pre-Action Protocol for Disease and Illness Claims
• Pre-Action Protocol for Resolution of Package Travel Claims
• Pre-Action Protocol for Professional Negligence Claims

The recommendations

The recommendations in respect of the Personal Injury PAPs are, with one or two exceptions, relatively minor and include:

• The creation of a separate protocol for child abuse claims;
• A protocol for overseas travel claims is not required;
• The protocols should start with "a simple navigational aid through the requisite processes";
• The importance of Alternative Dispute Resolution (ADR) should be made more prominent and explained simply;
• Where appropriate the protocols should be better aligned with the Serious Injury Guide and the Rehabilitation Code with the same being given greater prominence;
• Examples of the stocktake process under which the parties together consider the evidence and the arguments in order to see whether litigation can be avoided or, if that is not possible, for the issues between the parties to be narrowed before proceedings are issued be provided and the completion of the process made obligatory;
• Improvements to the process of updating the protocols; and
• There should be timely changes to the protocols to reflect changing document disclosure requirements to reflect developments such as the creation of new investigatory bodies and new legislative requirements.

In addition to the Personal Injury PAPs, changes are also recommended to a wide range of other protocols including those relating to Housing Claims, Judicial Review, Debt Claims, Construction and Engineering Disputes, Professional Negligence and Media and Communications Claims. Amongst these changes is the proposal that a new protocol be created for claims on the multi-track in the Business & Property Courts (B&PC).

A new child abuse claims protocol

In the personal injury field, the most notable proposal is the creation of a new protocol specifically for child abuse claims. No details of the proposed content of this new protocol have yet been made available. 

A new protocol for multi-track claims in the Business & Property Courts

A greater degree of detail has been provided in respect of this proposal which it is stated has been prepared in close consultation with users of the B&PCs. It is proposed that save in certain specified circumstances the protocol will be mandatory, the exceptions including urgent cases, where an agreed dispute resolution process has already been engaged, such as an escalation clause or tiered dispute resolution clause cases where the parties agree by way of written consent to opt out of the process. It is also proposed that the protocol will include a "non-prescriptive pre-action dispute resolution obligation", but should not include a structured stocktake obligation.

What next?

The CJC's proposals are still a long way from being implemented and it will be for the Civil Procedure Rules Committee and the Online Procedure Rules Committee to consider and determine how the recommendations of the CJC are to be taken forward.

No timetable has been provided for any future action on these recommendations but Sir Geoffrey Vos, the Master of the Rolls, the Head of Civil Justice and Chair of the CJC has said that he was grateful for the working group’s ‘comprehensive review’ and expressed a hope that the implementation of these recommendations ‘will be prioritised’.

We will continue monitoring the progress of the CJC's recommendation and shall report on any developments.