Reports
- Phase 2 report on Pre-Action Protocols
- Final report for the Procedure for Determining Mental Capacity in Civil Proceedings
- Interim report and consultation on litigation funding
- The Civil Justice Council 2023-24 annual report
- Enforcement Working Group Call for Evidence
- The Master of the Rolls announcement on the Guideline Hourly Rates increase
Phase 2 Reports on Pre-Action Protocols
The CJC's work on Pre-Action Protocols was split into two parts. The CJC's Final Report Part 1 was published in August 2023 and focused on the role of Pre-Action Protocols, the digitalised justice system and the creation of a general PAP. It recommended making compliance with Pre-Action Protocols "formally mandatory" except for urgent cases and suggested creating a digital PAP Portal for any digital court process governed by the OPRC.
The Phase 2 report provides recommendations for reforms across various litigation specific PAPs including personal injury, disease, clinical negligence, professional negligence and the package travel PAP. Key recommendations include:
- Mandatory Mediation Initiatives –In Part 1 the working group recommended a non–prescriptive obligation to engage in a dispute resolution process and in Phase 2 the working group recommends that parties who engage in formal dispute resolution pre-action should be exempt from mandatory mediation post proceedings. All PAPs with a dispute resolution requirement should be updated to reflect this.
- Pre-Action Protocol for Personal Injury Claims - The report proposes several minor changes to the Personal Injury PAP, including better navigation and clarity, the importance of ADR, better alignment with the Serious Injury Guide and the Rehabilitation Code, and providing insurer details with the acknowledgment of service or as soon as possible. The PAP should provide template stocktake examples and make completion obligatory.
A separate protocol for child abuse claims is recommended, but not for overseas travel claims, despite some respondents calling for it.
The report references that the PAP was designed for mainly fast-track claims but is the only protocol covering higher value personal injury and recommends improving the process for nominating experts, which is currently unsuitable for non-fast track claims, and creating a clearer structure for document disclosure.
Fatal claims should have a dedicated section with a list of disclosure requirements.
The report notes that many respondents believe the current PAP does not ensure fair disclosure of liability documents and that both sides should explain why they are not disclosing particular documents that appear relevant. It also recommends that claimants should list the medical records they have at the time of writing in the letter of claim and suggests that these should be released then to the defendant, unless requested not to do so.
In terms of vulnerability, there should be an exhortation to communicate any vulnerabilities as soon as possible.
With regards special damages the report recommends that the PAP should make it clear that TBC is generally unhelpful and that as many past losses should be particularised as possible, with heads of future loss identified even if those are TBC.
Pre-Action Protocol for Resolution of Clinical Disputes
Similar adjustments to those recommended for the Personal Injury Protocol should be applied.
The report recommends mandating the disclosure of Patient Safety Incident Response Framework and Health Services Safety Investigations Body Reports (including witness statements) and that claimants should request full coronial documents directly from the coroner. The interface with the Early Notification Scheme for Severe Birth Injury should be made explicit.
There should be a reference to the Duty of Candour and the use of apologies making clear that the apology should be substantive, rather than a token gesture, to prove meaningful.
The report acknowledges that the PAP will need further review once the Department of Health and Social Care Low Value Clinical Disputes Protocol is implemented.
Pre-Action Protocol for Disease and Illness Claims
Many proposed changes to the Personal Injury PAP are also recommended for the Disease and Illness PAP.
The report suggests that Annex E, which deals with Noise Induced Hearing Loss claims, should become a separate PAP.
The report queries why section 8 of the current PAP only suggests a Schedule of Special Damages should be supplied where liability has been admitted and suggests it would be better to request any available supporting documents, at least for past losses and to identify all provisional heads of loss, provided that there is reassurance and a caveat that the requirement is to use reasonable endeavours and to update the information when it is possible to do so.
Pre-Action Protocol for Professional Negligence
The report recommends retaining the current timeframes for the Professional Negligence PAP but adopting a more structured stocktake procedure from the revised General PAP.
It also suggests expanding the explanation of dispute resolution procedures and clarifying the consequences of non-compliance, including the courts’ powers to penalise parties in costs or stay proceedings for not engaging in dispute resolution.
Pre-Action Protocol for Resolution of Package Travel Claims
As with the previous PAPs harmonisation of layout and standardised wording is proposed for this PAP too.
The report also recommends that the PAP should specify that only one letter of claim is required for “family” claims.
In low-value holiday claims, to deal with the merits, initially the claimant only needs the defendant’s disclosure as to whether they had a proper system in place to avoid the injury in question. If the defendant believes the claimant has relevant documents on liability (as distinct from causation) they can reasonably expect these to either be disclosed or some reason provided as to why the claimant considers that is not appropriate.
Final report for the Procedure for Determining Mental Capacity in Civil Proceedings
In the CJC's final report the working group along with the almost unanimous view of the Judges and the Practitioners it consulted recommended that there should be clear provision and guidance on the procedure for determining issues of mental capacity in litigation which should be set out in CPR and/or a new PD to ensure that there is a single easily identifiable and authoritative source. The working group acknowledged that due to the huge diversity of civil claims and the wide range of issues that may arise, a single procedure to be applied in all cases would not be an appropriate step rather courts should be provided with a "menu of options" together with guidance as to the relevant principles to be applied to ensure an appropriate approach can be adopted to each case. The recommendations in the report are all sensible. Where a party is represented the legal representative should carry out the work of investigating the capacity issues. In other cases including existing options it may also require introduction of further options based on procedures available in the Court of Protection. The working group acknowledges that this report is only a first step in what may well be a long journey to achieving a system for determining issues of litigation in capacity which is fit for purpose. They recognise that some improvements can be made quickly, simply and at little or no cost but others require further detailed consideration, further funding and/or legislative intervention which could take some time.
One aspect that we were concerned about when we responded to the consultation was the role of the other party's legal representative in establishing capacity. The working group acknowledges that given the potential for conflicts of interest it is not appropriate for another party's legal representative to provide anything more than limited administrative assistance to the court.
Interim report and consultation on litigation funding
By way of recap, in July 2023 the Supreme Court ruled in the PACCAR case that Litigation Funding Agreements (LFAs) that entitle funders to payments based on the amount of damages recovered will be classified as Damages Based Agreements (DBAs) and in turn must comply with the Damages Based Agreements Regulations 2013 or risk being unenforceable. This decision created significant uncertainty in the Third Party Funding (TPF) market. A Bill to reverse PACCAR that had its 2nd reading in the House of Lords did not proceed following the general election. The new Government has advised that they will wait for the CJC's final report on litigation funding before taking any legislative action regarding the PACCAR decision.
The CJC's litigation funding consultation interim report does not make any recommendations but focuses on the following areas:
- The development of litigation funding in England and Wales
- The development of self-regulation through the Association of Litigation Funders Code
- Different approaches to regulation in our jurisdiction and abroad
- The relationship between costs and funding
- Other litigation funding options including CFAs, LEI, DBAs, crowd funding
The consultation which closes on 3 March 2025 covers 39 questions and seeks evidence in the following areas:
- Whether, how and by whom third party funding should be regulated
- Whether and if so, to what extent a funder’s return should be capped
- How third party funding should be deployed relative to other sources of funding
- The role that should be played by rules of court in controlling funded litigation
- Potential provisions to protect claimants
- The extent to which availability of funding encourages litigation
Enforcement Working Group Call for Evidence
The consultation was aimed at developing recommendations for improving the enforcement process, ensuring that court judgments are effectively implemented and that the civil justice system remains accessible and fair. A report with recommendations is expected to be published by the CJC early 2025.
Other work of the CJC
In addition to the work above, a working group has been established to review the Solicitors Act following the decision in Belsner v CAM Legal Services Limited where the Master of the Rolls acknowledged that a distinction between contentious and non-contentious costs was outdated and in need of urgent legislative attention. The working group will consider the current contentious/non contentious costs regime and produce a final report making recommendations for reform. The Solicitors Act working group's interim report and consultation is likely to be published early 2025. A link to the terms of reference is here: Solicitors Act - Courts and Tribunals Judiciary
The costs working group was established in July 2024 to review guideline hourly rates and is currently looking at hourly rates for Counsel's fees and a new top rate for complex commercial work with recommendations in 2025. A link to the terms of reference is here: Costs - Courts and Tribunals Judiciary
There is ongoing work by the data working group data to identify the necessary data and improve data collection to enable the CJC to carry out its statutory function. A link to the terms of reference is here: Data - Courts and Tribunals Judiciary
The futures working group is looking at the long term impact of technology on the administration of justice and work is ongoing in this area. A link to the link to the terms of reference is here: Futures - Courts and Tribunals Judiciary
Please contact Nicola Critchley for further information.
