Pre-Action Protocols – what is different?

The Civil Justice Council published part one of its final report on Pre-Action Protocols (PAPs) in late August 2023, following the commencement of its review in late 2020.

Are they changing?

Firstly, they are here to stay. The report commented that they have an increasingly important role in providing an opportunity for parties to avoid the court system altogether or at least facilitate the narrowing of the issues in dispute by requiring the parties to engage at an early stage. The recommendations are not intended to fundamentally alter the existing framework for the regulation of the parties' pre-action conduct. The report does not extend the court's powers either – it is more about how they can be digitised for smaller claims and re-emphasising their place in the litigation process more generally. 

What are the key changes?

• Including in the overriding objective an express reference to the need to comply with and enforce PAPs.
• Making PAPs mandatory – so non-compliance will lead to sanctions (except where the matter is urgent, such as when an urgent injunction is sought).
• Introducing a new General Pre-Action Protocol (with a separate one for small claims) with some new obligations.
• Special provisions are now made for vulnerable parties.
• Requiring the parties to confirm in the directions questionnaire whether they have complied with the PAP and to identify any non-compliance by any other party.

The second part of the review will focus on new litigation specific PAPs (including a bespoke PAP for high value commercial litigation). If you would like to discuss part one of the Civil Justice Council's final report, please contact our Disputes & investigation team.