Consultation Paper:
Pre-Action Protocol
Conference
TheobaldsPark
Minutes – 13 March 2008
Opening remarks by His Honour Judge Graham Jones
Conference Chair, His Honour Judge Graham Jones opened the conference by extending a warm welcome to delegates. He then proceeded to give an account of Civil Justice Council (CJC) involvement in the development of Pre-Action Protocols (PAPs) generally, and the draft Consolidated Pre-Action Protocol in particular. Judge Jones recounted the difficulties faced in creating the initial draft of the Consolidated PAP, and the experience of formulating proposals for a Default, or General, Protocol. He touched upon the benefits the latter would bring and spoke of amendments made to it by the Ministry of Justice (MOJ), which, he added, may prove a topic for discussion by the conference. Judge Jones concluded by explaining the dynamics of the consultation process and the role of the conference event within that.
Discussion of the structure and format of the new drafts and questions 1-3 of the Consultation paper
PAP Working Party Member 1:
PAP Working Party Member 1 commented on the past and future growth of subject-specific PAPs and the perceived need for a more coherent and systematic approach. He described how the CJC became involved in the development of a General Protocol, and spoke of the role of the Civil Procedure Rules Committee (hereinafter “Rules Committee”) and the MOJ in this. PAP Working Party Member 1 stated that the MOJ had amended the draft PAP in terms of layout and wording rather than substance. He remarked upon the desirability of change to Claim Forms in similar vein to those recently approved by the Rules Committee in relation to Allocation Questionnaires.
PAP Working Party Member 2:
PAP Working Party Member 2 drew attention to the fact that the consultation proposals were approved by the CJC and stated that this forum would form part of the consultation process. He explained the need for a General PAP from the perspective of litigants in person (LIPs), adding that the rationale for such a measure had been justified by the frontloading of costs; the question of sanctions; and the need to expedite drafting of future subject-specific PAPs. PAP Working Party Member 2 then outlined the proposed changes and the questions to be considered by delegates during the course of the day.
His Honour Judge Graham Jones:
The Conference Chair asked for delegates’ responses to the first set of questions:
- Do you agree with the proposed new structure of a shorter Practice Direction highlighting the court’s case management powers and a General Pre-Action Protocol setting out the requirements on parties to a dispute?
- Are there particular classes of cases or types of circumstances where the General Pre-Action Protocol should not apply?
- Do you have any comments on the language used and the drafting of the revised Practice Direction and General Pre-Action Protocol?
Chancery Barrister 1:
Chancery Barrister 1 questioned the assumption which seems to be made that a general protocol would be a good thing.
PAP Working Party Member 1:
PAP Working Party Member 1 observed that the proposed protocol does not add much in substance to existing requirements.
Chancery Barrister 1:
Chancery Barrister 1 warned of the dangers of applying a general protocol to all types of cases, and the unrealistic demands that could be placed on parties as a consequence.
PAP Working Party Member 3:
PAP Working Party Member 3 gave her assurance on behalf of the PAP Sub-Committee that the questions posed by Chancery Barrister 1 were thoroughly considered when the protocol was drafted. She explained that the proposals are simply guidance for best practice aimed at LIPs, consolidating existing provisions and making them more practical and user-friendly.
Chancery Barrister 1:
Chancery Barrister 1 articulated his belief that the proposed protocol could be useful in some cases but not all. He listed areas of work where the approach provided for under the General Protocol was incompatible.
PAP Working Party Member 2
PAP Working Party Member 2 stated that it was possible to cure the criticism that the Protocol could not work for all areas of litigation outside the nine protocols by including a paragraph indicating the sort of litigation envisaged as being likely to benefit from use of the Protocol.
Association Representative 1:
Association Representative 1 questioned the rationale for changing the word “claim” to “dispute” as this carries the sometimes misleading connotation of an argument between two people.
PAP Working Party Member 2:
PAP Working Party Member 2 explained that the word “dispute” was chosen to characterise a matter before the commencement of proceedings because it was felt to be clearer and widely understood as many cases are indeed disputed.
His Honour Judge Graham Jones:
Judge Jones advised that the word “claim” is used in a specific way under the Civil Procedure Rules (CPR) and so would not be a suitable replacement for “dispute”.
Chancery Barrister 1:
Chancery Barrister 1 suggested that “dispute” be replaced with “intended claim”.
Government Representative 1:
Government Representative 1 explained that “dispute” – though not ideal – was the best way to articulate a matter at the pre-issue stage.
Construction Lawyer 1:
Construction Lawyer 1 cautioned that the use of the word “dispute” could lead to difficulties as the word has a specific meaning in construction cases.
Insurance Representative 1:
Insurance Representative 1 questioned whether a general protocol was required and asked what analysis of need had been undertaken.
PAP Working Party Member 2:
PAP Working Party Member 2 maintained that the protocol did not propose doing anything new but just intended to be more prescriptive in its application.
His Honour Judge Graham Jones:
Judge Jones also said that the proposed protocol simply restated the current position, facilitating access to justice in the process.
Defendant Lawyer 1:
Defendant Lawyer 1 questioned whether the current system posed a problem to LIPs.
PAP Working Party Member 4:
PAP Working Party Member 4 regretted that an impact assessment had not been included in the consultation paper to determine who would be affected by the measure and how.
In-house Media Lawyer 1:
In-house Media Lawyer 1 questioned the need for a general PAP when the prevention of frontloading costs is the rationale behind ordinary PAPs. He argued that discipline ought to be applied to cases in their early stages and questioned why proponents of the general protocol refer to it simultaneously as “prescriptive” and as “guidance”. In-house Media Lawyer 1 advocated the development of a Practice Direction (PD) and basic protocol on dealing with matters before proceedings commence. In acknowledgement of the different needs presented by different cases, he articulated his support for a general default mechanism to work alongside individual PAPs.
Judicial Representative 1:
Judicial Representative 1 contended that the proposed protocol differs from existing provisions and is more prescriptive. In his view, a general principle with a more prominent profile would better address the issues used to justify a default protocol.
His Honour Judge Graham Jones:
Conference Chair, Judge Jones asked Judicial Representative 1 whether such a general principle should be recommended or mandatory.
Judicial Representative 1:
Judicial Representative 1 expressed his opposition to prescription.
PAP Working Party Member 3:
PAP Working Party Member 3 told the forum that the prescriptive nature of the proposals was introduced by the MOJ, which changed the wording from “should” to “must”.
PAP Working Party Member 1:
PAP Working Party Member 1 responded that the wording was selected for the purpose of clarity.
PAP Working Party Member 3:
PAP Working Party Member 3 conveyed her concern at the prospect of satellite litigation emerging from such imprecise wording.
PAP Working Party Member 1:
PAP Working Party Member 1 countered that some people might not understand the distinction between the words “must” and “should”.
Claimant Lawyer 1:
Claimant Lawyer 1 referred to the costs which would result from the use of the word “must”.
Discussion of manner in which ADR is treated in the General Protocol and question 4 by PAP Working Party Member 5
PAP Working Party Member 5 explained the position of the consultation paper regarding ADR and touched upon its current use and development. He reminded all that ADR is defined in the CPR Glossary as “anything other than trial”. He considered that what should be in the draft was the sentence, “It is expressly recognised that no party should or could be forced to mediate”, originating from the Halsey case. He asked delegates:
4.Do you agree with the approach taken to ADR in the General Pre-Action Protocol?
Professional Representative 1:
Professional Representative 1 indicated his belief that the protocol should include reference to ADR and he voiced his support for the terms of paragraph 6 of the draft protocol. He referred to the difficulty posed by paragraph 3 and the tension between that and paragraph 6.
Chancery Barrister 1:
Chancery Barrister 1 expressed his opposition to the inclusion of the Halsey sentence.
Mediator 1:
Mediator 1 favoured removal of the sentence, arguing that it is redolent with negativity and runs counter to the overriding objective of the CPR.
Claimant Lawyer 3:
Claimant Lawyer 3 welcomed the reference to ADR in the letter of claim and expressed concern at the possible removal of the sentence, warning of the prospect of satellite litigation.
Claimant Lawyer 4:
Claimant Lawyer 4 argued that the protocol language should take the form of guidance rather than stricture, warning of the satellite litigation that could ensue as a result.
In-house Media Lawyer 1:
In-house Media Lawyer 1 suggested alternative wording to that used in the draft protocol, which was agreed by the rest of the delegation (“It is expressly recognised that no party can be forced to mediate or go to ADR but any failure to give good reasons may sound in in costs”).
Discussion regarding the steps to be taken before starting a claim and questions 5 and 6 by PAP Working Party Member 3
PAP Working Party Member 3 presented the following questions to the delegation:
5.Do you agree with the required steps set out in the General Pre-Action Protocol, and in particular the approach taken to time limits?
6.Would it be helpful to include a ‘model’ letter (non-mandatory) before claim (for a standard consumer claim) as an annex to the General Pre-Action Protocol?
Defendant Lawyer 2:
Defendant Lawyer 2 argued that the focus of the proposals on the needs of LIPs renders the draft protocol corrupted and skewed, and asked whether a special protocol just for LIPs would be more appropriate.
Claimant Lawyer 2:
Claimant Lawyer 2 reminded the delegation of the emphasis placed by the Woolf reforms on access to justice and its rationale behind the PDs. He warned against putting justiciable problems secondary to special pleading.
Insurance Representative 1:
Insurance Representative 1 argued that there should be a requirement for the Letter of Claim to be addressed within a set period of time so that the playing field could be levelled and a Defendant had time to investigate and prepare.
Claimant Lawyer 4:
Claimant Lawyer 4 opposed guidance regarding early intimations as to when a claim will be issued.
PAP Working Party Member 3:
PAP Working Party Member 3 explained the drafting history behind the proposal for early intimation.
PAP Working Party Member 2:
PAP Working Party Member 2 focussed on the dangers presented by the frontloading of costs.
In-house Media Lawyer 1:
In-house Media Lawyer 1 referred to the potential benefits of early notification in defamation cases.
His Honour Judge Graham Jones:
Conference Chair, Judge Jones confirmed the lack of enthusiasm for model letters exhibited by delegates.
Discussion regarding the particular requirements of debt claims and question 7 by PAP Working Party Member 1
PAP Working Party Member 1 spoke of the debt dimension of the proposed protocol, which aims to encourage debtors to engage with creditors. He explained that the credit industry was receptive to the provision of certain key information to creditors (e.g. the availability of free debt advice and assistance). PAP Working Party Member 1 considered that the essence of the general PAP could be distilled into a one-page summary to be sent to debtors. He asked delegates:
7.Do you agree that the General Pre-Action Protocol should include the additional requirements in simple debt claims?
Association Representative 1:
Association Representative 1 expressed his concern that the proposals could unduly speed up the process.
Chancery Barrister 1:
Chancery Barrister 1 asked whether such debtors as sole traders would be covered by these provisions.
PAP Working Party Member 1:
PAP Working Party Member 1 envisaged that the provisions would apply to a wide range of debtors.
Association Representative 1:
Association Representative 1 argued that these provisions seemed cumbersome.
Defendant Lawyer 1:
Defendant Lawyer 1 questioned whether there was evidence of need for such proposals.
Association Representative 1:
Association Representative 1 doubted whether the proposals would succeed in getting debtors to communicate with creditors.
Professional Representative 1:
Professional Representative 1 expressed an interest in learning whether bringing the subject of debt into the proposals skews the draft protocol rendering it less effective.
PAP Working Party Member 2:
PAP Working Party Member 2 informed delegates that the Sub-Committee had experienced considerable difficulty in dealing with debt within the General PAP. It had previously suggested that debt did not require its own protocol yet the peculiarities of its own process with a need for shorter time limits sat poorly with the General PAP and its time periods. The Sub-Committee was also wary of the fact that the debt process was in the process of consultation.
Claimant Lawyer 4:
Claimant Lawyer 4 expressed concern at the clarity of the document, arguing against its inaccessibility and specificity.
His Honour Judge Graham Jones:
Conference Chair, Judge Jones ascertained that the delegation was in favour of a statement of general principle as opposed to a document as detailed as the one proposed by the CJC.
PAP Working Party Member 5:
PAP Working Party Member 5 reassured the delegation that in the eight years following the civil justice reforms, few parties have appeared before him to argue semantics.
Chancery Barrister 1:
Chancery Barrister 1 commented on a particular case in which a point of semantics had led to a perverse outcome in a landlord and tenant matter.
PAP Working Party Member 5:
PAP Working Party Member 5 asserted that it is neither possible nor desirable to legislate for all situations.
Construction Lawyer 1:
Construction Lawyer 1 argued that defendants take advantage of claimants’ anxieties to fulfil their obligations under the protocols by demanding time extensions as well as more documents. She recommended that more guidance be given to judges on this problem and that they encourage claimants to be more robust in relation to such requests.
Claimant Lawyer 4:
Claimant Lawyer 4 stated that the clinical negligence protocol is not being used as intended. He cited the lack of judicial support and sanctions as a problem in the lack of compliance with it.
Discussion regarding Experts and question 8 by PAP Working Party Member 4
PAP Working Party Member 4 addressed the conference on paragraph 8 of the proposed protocol which relates to experts. He spoke of the wealth of guidance and requirements regarding the instruction of experts and the flexible approach taken towards obtaining experts’ reports. PAP Working Party Member 4 referred to LIPs as target beneficiaries of this paragraph. He asked delegates:
8.Do you agree with the approach taken to experts in the General Pre-Action Protocol?
His Honour Judge Graham Jones:
Conference Chair, Judge Jones commented upon the vexed question of experts, referring to the difficulties in settling on a joint expert in white finger cases.
Claimant Lawyer 4:
Claimant Lawyer 4 argued that the wording of this section falsely implied a choice of two options: a single joint or agreed expert, which might be misleading for a lay audience.
PAP Working Party Member 1:
PAP Working Party Member 1 stated that paragraph 8.4. only explains what paragraph 8.3 already states.
PAP Working Party Member 2:
PAP Working Party Member 2 explained how the drafting of this paragraph was affected by the fact that Part 35 is currently under review by the Rules Committee. He added that the drafting committee did not seek to diverge from Part 35 but rather summarise it. Insofar as the draft was found to have diverted in any way then he would have another look at this section.
In-house Media Lawyer 1:
In-house Media Lawyer 1 argued that including a lengthy explanation of Part 35 in the protocol would defeat its proposed clarity.
PAP Working Party Member 2:
PAP Working Party Member 2 contended that the paragraph gave a less intimidating summary of Part 35 and presented a signpost to LIPs as to where more detailed guidance on experts could be located.
Defendant Lawyer 1:
Defendant Lawyer 1 argued that mandating the attachment of an expert’s report to a letter of claim where a report had been obtained without notification to the opponent was not feasible.
Judicial Representative 1:
Judicial Representative 1 voiced his concern at the increased costs which would likely ensue. He advised that a general principle should be implemented in place of the proposed protocol.
In-house Media Lawyer 1:
In-house Media Lawyer 1 cautioned against frontloading costs through protocols.
PAP Working Party Member 3:
PAP Working Party Member 3 outlined the rationale behind paragraph 8.6.
His Honour Judge Jones:
Conference Chair, Judge Jones asked whether delegates thought the paragraph ought to be removed.