All pre-action protocols should be designed to be used by both lawyers and litigants in person, with summaries of technical language included to help understanding.

That was one of the key recommendations of a working group of the Civil Justice Council tasked with trying to decide what pre-action protocols should look like in a rapidly changing legal landscape.

The group, chaired by Professor Andrew Higgins from the University of Oxford, this week published part one of its final report with proposed amendments to the protocols (PAPs) and ideas for how to ensure compliance with them.

The recommendations include that all PAPs should make explicit reference to the overriding objective and specifically the parties’ obligation to co-operate. Compliance should be made formally mandatory except for urgent cases where the limitation period is expiring or urgent injunctions are being sought.

All online PAPs should include a question asking parties about their vulnerability and additional information should be supplied to those who need it.

Crucially, the working group recommends that all pre-action portals are designed to be used by both professional court users and litigants in person. This objective includes developing portals both for individual web-based access and for professional users who require integration with their own case management systems.

The report says: ‘Whatever type of portals are developed, and whether they are designed by government or private service providers, they should be accessible and workable for both professional court users and litigants in person.

‘Digital assistance or paper-based alternatives must be available for litigants in person who are technologically disadvantaged either because they have limited access to technology or limited ability to use it.’

The group also suggests that the Ministry of Justice, perhaps in conjunction with HMCTS, examines the feasibility of developing a general pre-action portal which is limited to the main PAP steps, but can be linked to relevant existing online general claims portals.

On sanctions for non-compliance, the group found a huge consensus in favour of more consistent enforcement. The interim report had set out a proposal to allow the court to strike out a claim or defence in cases of ‘grave non-compliance’, but opponents to this extra power said it was too draconian and risked ‘weaponising’ PAPs. The working group elects not to recommend the inclusion of an express strike-out power in the PAP itself.

The group says the general PAP should require defendants to provide a letter of acknowledgement within 21 days of receipt of the claimant’s pre-action letter of claim, and a full response within 90 days of receipt of the pre-action letter of claim. The defendant must identify in its letter of acknowledgement whether it believes it is the right defendant for the claim and should also indicate what additional information it needs to provide a full response.

Master of the rolls Sir Geoffrey Vos welcomed the report and the CJC will now decide what further action to recommend.

 

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