Civil Justice Council consults on pre-action protocols

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The Civil Justice Council has published an interim report and consultation on the pre-action protocols (PAPs). The 17 different PAPs set out the steps the courts expect parties to take before starting proceedings for civil claims. The two most relevant for professional firms are the PAP for professional negligence and the PAP for construction and engineering disputes.

The CJC has not made any recommendations in its interim report but wants to use the consultation to allow everyone to share their views about the future direction of the PAPs.

The consultation covers a range of issues. These include the benefits of making the PAPs available via online portals and linking them online to the relevant court, making PAPs mandatory and setting further sanctions for non-compliance. The CJC wants respondents’ views on introducing a ‘good faith obligation’ to help resolve disputes before they reach the courts. It has also suggested that the PAPs could be made more user-friendly by using non-technical language and providing additional information for litigants in person.

James Burgoyne, Divisional Director – Claims & Technical, Brunel Professions said: “Some of the suggestions for change to the Pre-Action Protocol for Professional Negligence are highly concerning. The proposal to reduce the time allowed for a defendant to make their reply to a letter of claim would be damaging. This has already occurred in relation to the Pre-Action Protocol for Construction & Engineering Disputes and many legal and insurance professionals consider the changes have rendered the PAP unworkable in relation to disputes involving construction professional negligence, and as a result, self defeating. There is a great deal of support for the PAP for Professional Negligence; in many ways it works – and it would be a backwards step to lose it through inappropriate changes. We would urge interested parties to participate in the consultation so that the right changes are introduced.”

The consultation closes on Friday 24 December at 10.00am. It includes specific questions relating to the professional negligence and construction and engineering PAPs.

The CJC’s announcement, interim report and consultation questions have been published on the Judiciary website. The pre-action protocols for professional negligence and construction and engineering disputes are available on the Justice website. Reports about the consultation have been published by Legal Futures, LPC Law and Reynolds Porter Chamberlain.

Brunel provides professional indemnity insurance broking services to professional firms. Visit our website to find out more or call Jonathan Filer on +44 (0)117 325 0752.

Paragraphs 4.74 – 4.76 (page 49) of the report deals with the Pre-Action Protocol for Professional Negligence; it comments on the timescales for defendant reply under the Protocol, and makes a headline statement that the 3 months given under the existing Protocol is excessive. Brunel Professions strongly disagrees with this statement on the basis of its extensive experience in dealing with negligence claims against professionals.

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