Amended pre-action protocols likely in force 6 April 2015

Amended pre-action protocols likely in force 6 April 2015
The Civil Procedure Rule Committee (CPRC) is in the process of making significant amendments to a number of the pre-action protocols and will be introducing a new debt protocol. We understand that it is likely that the following protocols will come into force on 6 April 2015: Practice Direction on pre-action conduct, professional negligence, judicial review, mortgage arrears, possession claims by social landlords (rent arrears), housing disrepair, personal injury and clinical disputes.

Why are the protocols being amended?

Lord Justice Jackson, in his Final Report on Civil Litigation Costs published in January 2010, recommended that the pre-action protocols be retained, but with certain amendments to improve their operation and to keep pre-action costs proportionate. He also recommended the creation of a protocol specifically dealing with debt claims, in circumstances where the claimant is a business and the defendant is an individual. Following these recommendations, a CPRC sub-committee was set up to consider any necessary amendments to the pre-action protocols. Whilst the CPRC sub-committee is still considering drafts of some of the protocols, some have been released and are likely to come into force on 6 April 2015, subject to ministerial sign off.

Set out below is a summary of the protocols that are being amended and what stage each is at, with links to the latest draft where this is available. We will publish more information as and when it is released by the CPRC and will update our Practice Notes as and when the amendments are finalised.

Practice Direction—Pre-action conduct and Protocols

This practice direction (which replaces the Practice Direction—Pre-action conduct) applies to disputes where no other specific pre-action protocol applies but it also contains requirements which will apply to all claims. Despite Jackson LJ’s recommendation for the majority of this Practice Direction to be repealed, the CPRC sub-committee concluded that it continued to have a purpose. The new draft practice direction is shorter and more succinct. It sets out the steps the court would normally expect parties should take before commencing proceedings but is much less prescriptive than the current version. The latest minutes of the CPRC that have been released (for the 6 February 2015 meeting) state that this practice direction is approved and we understand that it is likely to come into force on 6 April 2015. The latest draft available is from the 7 November 2014 CPRC meeting.

Pre-action protocol for professional negligence

The overall view on this protocol was that it was generally working well and required little amendment. It is likely that this revised protocol will come into force on 6 April 2015. The latest draft available is from the 7 November 2014 CPRC meeting. The proposed changes include:

  • the introduction of adjudication as a potential method of ADR, whereby an independent adjudicator provides a decision that can resolve the dispute either permanently or on a temporary basis, pending subsequent court determination. This ties in with proposals by the Professional Negligence Lawyers’ Association that lower value professional negligence claims may benefit from early use of adjudication
  • amendment to the disclosure provisions for both parties. These are: a suggestion that the letter of claim includes any reasonable requests of the claimant for relevant documents held by the professional, and the letter of response to provide copies of key documents, to the extent not already exchanged in the protocol process
  • the introduction of a stock take provision for consistency with the other protocols. This suggests that, where the dispute has not been resolved after following the protocol procedure, the parties should undertake a further review of their respective positions and consider the papers/evidence to see if proceedings can be avoided and, at the least, to narrow the issues between them

Pre-action protocol for judicial review

The latest draft of this protocol is from the 4 July 2014 CPRC meeting and it is likely that it will come into force on 6 April 2015. The proposed amendments provide greater clarification on the existing wording, as opposed to wholesale change. Highlights from the July 2014 draft include greater explanation as to the proper extent of pre-action requests for information, further clarification as to what steps the parties should take where the protocol may not be followed, such as where proceedings need to be issued urgently, and better guidance as regards the aim of the protocol. It will be interesting to see the impact of these proposed amendments and if they have the desired effect of helping parties to make informed decisions early, achieve settlement and ultimately avoid the need to enter into expensive litigation.

Pre-action protocol for debt claims (new)

The new debt pre-action protocol will replace and enhance what is currently in Annex B of the Practice Direction—Pre-action conduct. The necessity for a debt protocol was raised by Jackson LJ in his Final Report because debt claims 'constitute a huge swathe of business of the courts'. It will apply to debt claims where the claimant is a business and the defendant is an individual. The draft protocol was put out to consultation and the consultation has now closed. The latest draft available is from the 4 July 2014 CPRC meeting. According to the minutes of the 6 February CPRC meeting, in view of the responses received to the consultation, a redraft of the protocol will be necessary, taking into consideration the views expressed. A simplified protocol is likely to be drafted, possibly with a two step pre-action process in which the creditor only has to supply to the debtor documentation concerning the debt if the debtor responds to the initial notification letter. This is to meet complaints from creditors that it would be very expensive to do this with the first letter, when so few debtors deny liability and when the Consumer Credit legislation requires creditors to go through a number of steps with the debtor before intimating there will be a claim. There may also be a further consultation on the new draft. There is currently no in force date for this protocol.

Pre-action protocol for defamation

This will be re-named the pre-action protocol for publication proceedings. Apart from releasing a draft of the amended protocol at the 4 April 2014 CPRC meeting, there is very little information available on the amendments to this protocol or when the amended version is likely to be in force.

Pre-action protocol for construction and engineering disputes

Jackson LJ commented in his Final Report on the excessive front loading of costs that had been caused by this protocol and it is likely therefore that any amendments will take this into account. However comments from the 6 February 2015 CPRC minutes state that work on amending this protocol has not yet been started. No draft has therefore been published.

Property related protocols

Mortgage

The amended pre-action protocol for possession claims based on mortgage or home purchase plan arrears in respect of residential property is likely to come into force on 6 April 2015. The latest draft available is from the 6 February 2015 CPRC meeting.

The main changes are in relation to the identity of the tenant in occupation. Thus the definitions have been revised to include the definition of an ‘authorised tenant’ as being one whose tenancy is authorised as between the borrower and the lender. The other changes are that, as part of the aims of the protocol to encourage greater pre-action contact and communication between Lender and Borrower, there is a new requirement that the Lender is encouraged to check who is in occupation of the property before issuing proceedings, including seeking information at that early stage as to whether the property is occupied by an authorised tenant. There is also a new provision (para 7.2) where the property is occupied by an authorised tenant as to requirements of the court, at the possession hearing, to consider whether further directions are required, to adjourn until possession has been recovered or to make an order conditional upon the tenant’s right of occupation.

Paragraph 6 of the protocol sets out the occasions when the Lender must not consider starting a possession claim for mortgage arrears based on the Borrower’s ability to demonstrate various matters. Such matters have been extended to include, eg, a reasonable expectation of an improvement in their financial circumstances in the foreseeable future.

Other than this, there is no change to the general scope, aims or timings contained within the protocol.

Possession claims by social landlords (rent arrears)

The pre-action protocol for possession claims by social landlords is likely to come into force on 6 April 2015. The latest draft available is from the 7 November 2014 CPRC meeting.

The main change to the updated protocol is the inclusion of a new Part 3 (and consequential changes). This is to cover the situation where, if the landlord proves its case, there is a restriction on the court’s discretion on making a possession order and/or to which s 89 Housing Act 1980 applies (ie, in the case of non-secure tenancies, unlawful occupiers, succession claims and the severing of joint tenancies). In such cases Part 3 will apply except where the landlord has brought the case solely on the basis that if proved there is a restriction on the court’s discretion by reason of s 89 HA 1980. Part 3 includes additional requirements as to the information the landlord is required to provide to the occupier prior to issue.

Housing disrepair

The pre-action protocol for housing disrepair cases is likely to come into force on 6 April 2015. The latest draft available is from the 7 November 2014 CPRC meeting. The amendments represent a fairly wholesale overhaul of the PAP. For example:

  • the introduction has been revised to make it more focused as to claims by tenants and others in respect of housing disrepair, requiring tenants to ensure that their landlord is aware of the disrepair prior to using the protocol and that, despite the landlord’s knowledge, the matter remains unresolved; rather than the broader Woolf-referenced rationale for protocols generally
  • the guidance notes have been removed, some elements dispensed with entirely and others appearing elsewhere in the revised protocol
  • whilst the aims of the protocol remain unchanged, ie early resolution of disputes with minimal litigation cost and the avoidance of unnecessary litigation, the definitions have gone, essentially replaced by paragraphs setting out the scope of the protocol and the types of claim it is intended to cover. Noting that, as before, it can include a claim for personal injury and, where this is so and that element of the claim requires expert evidence other than a GP’s letter, then the pre-action protocol for personal injury claims should be followed for that element of the disrepair claim
  • the reference to the likely value of such claims (and therefore their appropriateness for being pursued on the fast track) has been removed
  • in terms of identifying possible ADR options, reference to negotiation and discussion and to ENE have been removed
  • a simplified structure follows with a section on the tenant’s letter of claim, the landlord’s response, experts, single joint expert, joint inspection, time limits (in relation to experts), urgent cases (allowing for earlier instruction of an expert), access, expert’s fees, taking stock, time limits, limitation and costs
  • there are 4 annexes:
    • letter of claim (a) for use by solicitor (b) for use by the tenant
    • letter of instruction to expert (a) for use by solicitor (b) for use by the tenant
    • schedule of disrepair
    • special damages form
Dilapidations

The pre-action protocol for claims for damages in relation to the physical state of commercial property at termination of a tenancy (the dilapidations protocol) is not being amended as this is a relatively new protocol with few problems having been reported.

Personal injury related protocols

The pre-action protocol for personal injury claims, pre-action protocol for the resolution of clinical disputes and the pre-action protocol for low value personal injury claims in road traffic accidents are being amended and we understand that the amended protocols will come into force on 6 April 2015. The latest drafts available are from the 6 February 2015 CPRC meeting. The pre-action protocol for low value personal injury (employers' liability and public liability) claims and pre-action protocol for disease and illness claims are not being amended.

Pre-action protocol for personal injury claims

Although the main provisions of the pre-action protocol for personal injury claims remain unchanged from the original version, new sections have been added to reflect the impact of the low value protocols for RTA and EL/PL claims.

Since the introduction of the low value protocols in 2013 there has been a substantial reduction in the number of claims run under the PI protocol. The revised PI protocol outlines the circumstances where it will still be used for RTA, EL and PL claims. This is specifically where a claim has fallen out of the low value protocol because liability is denied, contributory negligence is alleged or the Claim Notification Form process has not been followed correctly.

Pre-action protocol for the resolution of clinical disputes

The pre-action protocol for the resolution of clinical disputes has been streamlined (by largely removing explanatory material) to reinforce its use as a procedural tool. The revised protocol makes specific reference to the new duty of candour imposed on healthcare providers and includes consideration of an apology as a separate specific objective. It explicitly advocates a 'cards on the table' approach. A Letter of Notification stage has also been added to encourage parties to commence investigations, and notify appropriate insurers, as soon as possible. For more information on the duty of candour LexisPSL PI subscribers can see Practice Note: The duty of candour.

Pre-action protocol for low value road traffic accident claims

From 6 April 2015 medico-legal experts will need to be registered with the MedCo portal in order to provide medico-legal reports for RTA soft tissue injury claims brought under the pre-action protocol for low value road traffic accident claims. It will no longer be possible for claimant lawyers to source reports from an individual or organisation with which they have a financial link. The changes aim to:

  • address concerns around the independence and quality of medical reports, and
  • assist in the prevention of fraudulent claims

These amendments are part of the 78th update to the CPR (see the Civil Procedure (Amendment No. 8) Rules 2014 (SI 2014/3299) and practice direction amendments document).

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