The Civil Justice Council review of the pre-action protocols

In November 2024, the Civil Justice Council (CJC) concluded its comprehensive review of the pre-action protocols with the publication of its Final Report Part 2. The CJC has previously published its Final Report Part 1 in September 2023 and its Interim Report in 2021.

The CJC made clear that “harnessing the potential of pre-action protocols to promote greater access to more affordable justice, especially through the use of digital portals, is a priority for the CJC.”

The final reports make a number of significant recommendations to reinforce and enhance the role of the pre-action protocols within the civil justice system. Part 1 recommends the introduction of a new ‘General Pre-action Protocol’ (General PaP) to replace the current Practice Direction: Pre-action Conduct (PDPC), and a new Small Claims Protocol for claims of up to £50,000. Part 2 also recommends the introduction of a protocol for business and property court cases and a protocol for sexual abuse cases.

This article is concerned with the General PaP and the impact of the landmark decision of Churchill v Merthyr Tydfil Borough Council [2023] EWCA Civ 1416 on the parties’ pre-action and post-action dispute resolution obligations.

The CJC Review Final Report Part 1

Part 1 makes a number of recommendations to reform the pre-action protocols, including:

• amending the overriding objective to refer to the need to comply with, and enforce, the protocols
• making compliance with pre-action protocols mandatory (with limited exceptions)
• penalising parties for failing to comply with an applicable protocol and digitising the protocols and linking them to the court process, and
• governance of pre-action portals be allocated to the Online Procedure Rule Committee.

Part 1 also recommends the introduction of a new General PaP for dispute that do not fall within a specific protocol. At its core, the General PaP requires the parties to complete the following three sequential procedural steps before issuing proceedings:

1. the early exchange of relevant information
2. engagement with a dispute resolution procedure; and
3. if the matter cannot be settled, the parties should complete a stocktake with a view to narrowing the issues in dispute.

The dispute resolution obligation

The parties are required to consider and engage with a relevant dispute resolution procedure, although they are not required to reach a settlement and thereby is consistent with the parties’ right to access the courts. The provision lists a number of dispute resolution procedures which include mediation, early neutral evaluation, an Ombudsman system, and without prejudice meetings. In respect of the parties’ dispute resolution obligation, paragraph 4.14 of the General PaP exempts parties from any future requirement to engage with a dispute resolution procedure if they have engaged with one at the pre-action stage. The intention behind this exemption is to avoid low value disputes that have already been through a dispute resolution process from having to go through an additional process after proceedings have been issued.

Pre-action and the impact of Churchill

In Churchill, the Court of Appeal held that the courts could compel parties to engage with alternative dispute resolution (ADR) procedures and that this would not undermine their article 6 right to a fair trial under the European Convention of Human Rights. Following the decision in Churchill, parts of the Civil Procedure Rules (CPR), most notably the overriding objective, were amended to make explicit the court’s powers to make ADR orders.

Although Churchill is concerned with the court’s powers when proceedings have been issued, the decision and the new CPR powers on ADR alter the position in paragraph 4.14 of the General PaP for higher value claims. This is so because the courts retain the power, via the new CPR rules on ADR, to order the parties to engage with ADR regardless of whether they have engaged with it at the pre-action stage.

Two very recent post-Churchill decisions support this observation. In Heyes v Holt [2024] EWHC 779 the parties had attempted mediation before issuing proceedings but were unable to settle. HHJ Matthews, sitting as a judge of the High Court, stressed that “this is a case which cries out for mediation by the parties” and, given that the parties had received full disclosure of documents, he ordered a stay of proceedings to enable the parties to engage in a second mediation. Although HHJ Lewis in Francis v Pearson [2024] EWHC 605 (KB) did not make an ADR order, he “strongly recommended” that the parties engage with a second mediation.

The CJC’s recommendations, together with the decision in Churchill and the amended CPR, clearly demonstrate the desire of policy makers and the judiciary in enhancing and strengthening the role of ADR procedures, both at the pre-action stage and during proceedings. The courts will, in future, expect the parties to have seriously considered and engage with an applicable protocol and, in particular, discharged their dispute resolution obligations. It may not be enough that the parties have engage with ADR at the pre-action stage – as the recent cases discussed above illustrate, the parties may be ordered to engage in a further round of ADR if the court considers it appropriate in the circumstances.