Civil litigation

Civil Justice Council consultation on pre-action protocols – Law Society response

The Civil Justice Council (CJC) is reviewing how to make pre-action protocols more effective and streamlined. We responded in December 2021.

The proposals

In November 2021, the CJC published an interim report for consultation on pre-action protocols.

The consultation seeks feedback on potential reforms, such as making pre-action protocols:

  • more accessible and available through online portals
  • more user-friendly for litigants-in-person
  • compulsory (to a degree) before starting court proceedings

The proposals also introduce concepts such as:

  • a ‘good faith obligation’ that seeks to narrow down the dispute before going to court
  • a ‘joint stocktake’ between parties before starting proceedings

Find out more about the consultation

Our view

We do not believe that now is a suitable time to reform pre-action protocols because:

  • many other areas of civil justice are being reformed, and
  • the pre-action protocols work reasonably well in general (although there are some exceptions)

What this means for solicitors

Future reforms to pre-action protocols may significantly change how civil litigators and other practitioners conduct dispute resolution.

A pre-action protocol sets out what must be done in relation to a specific claim before court proceedings are issued.

Currently, there are 17 pre-action protocols relating to areas such as:

  • personal injury
  • debt
  • judicial review
  • housing

There’s also a Practice Direction on pre-action conduct where no specific protocol applies.

Next steps

The consultation closed on 22 January 2022.

The Civil Justice Council will review the responses and publish recommendations in a final report.

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