Reforming the Pre-action Protocols – The Increasing Role of ADR

by Tony Allen

1. Introduction

Part 1 of the Civil Justice Council (CJC)’s Final Report about reform of the Pre-action Protocols (PAPs) was published in August 2023.  It follows their interim report published in November 2021, and takes account of the many responses which this generated.  This first instalment represents a major step forward in proposing a coherent approach to encouraging serious attempts to consider settlement earlier in the life of claims, and to narrowing the issues where settlement is not reached so as to refine the litigation process.  It will make pleasing reading to those who wish to see the role of mediation clarified and strengthened within the civil justice system.

Two notes of caution are required, however.

Firstly, this is a package of recommendations from the CJC, which is an advisory body only, albeit one with considerable clout, chaired by a reforming Master of the Rolls.  The PAP Working Group (WG) is chaired by Professor Andrew Higgins, and comprises a wide spectrum of CJC members, including academics -; and a number of external lawyers and judiciary (though, except for a KB Master, not drawn from the High Court).  Implementation of these recommendations (as they are or as modified), or not, lies in the hands of the Civil Procedure Rules Committee (CPRC).  There is no overlap in membership except that both the CJC and the CPRC are chaired by the Master of the Rolls.

Secondly – and linked – the WG started its work on the PAPs in late 2020. Unsurprisingly for such a complex area, it has taken nearly three years to produce its first set of final recommendations, and it still has to produce its recommendations on the individual sector PAPs, of which there are currently fourteen.  This will take time, and even when produced, the CPRC, which has a substantial agenda already will be hard put to it to devote the amount of time they are likely to need to consider these recommendations.  Maybe this will indeed encourage swift implementation without wholesale reconsideration, but this is unlikely with a body like the CPRC used to dealing with the minutiae of drafting complex, comprehensive and sensitive rules.  So it is unlikely that these recommendations however welcome will be fully in place for some considerable time to come.

This does not mean that the courts have no opportunity to take into account the spirit of these recommendations, and even to implement that spirit into their decisions where they fall properly within the inherent jurisdiction of the courts.  It is widely known that the case of Churchill v Merthyr Tydfil BC, in which CEDR among other stakeholders has been invited to intervene, is to be heard by the Court of Appeal in November 2023.  The Court is likely to use that case to review the effect of Halsey v Milton Keynes, and whether and if so what powers the courts possess to require parties to engage in mediation.  It would be surprising indeed if that court so constituted did not acknowledge the thinking of this CJC report and at least try to place their decision somewhere congruent with its content.

This CJC Report has appended to it drafts of new General and Small Claims Protocols, the work of Masood Ahmed, Associate Professor at the University of Leicester.  The General PAP is proposed to replace the current Practice Direction: Pre-action Conduct (PDPAC).  It so happens that the PDPAC was the only relevant PAP in the case of Churchill, which was a claim in private nuisance over a knotweed invasion from Council-owned land.  This article therefore reviews how the claimant’s pre-issue conduct in Churchill, as extracted from the original County Court judgment now under appeal, might have been affected by the terms of the new General PAP, if they had been in force.

2. A Summary of the Report’s Conclusions

The full Part 1 Report, available here, is a clear, well argued and straightforward read, and is recommended to those who want to get closer to its detailed content.  This can only be a brief summary, written from the point of view of a lawyer mediator interested mainly in considering the Report’s impact on the consolidation and growth of mediation in civil justice.

The Report identifies several areas which require further consideration in their Part 2 report dealing with specific PAPs, such as the use of digital access to PAPs and how this might relate to digitised proceedings, discussing supervision of private platforms, problems of securing privilege information, and the protection of litigants in person and vulnerable or non-technical parties; and a streamlined costs assessment procedure to improve or replace Part 8 costs proceedings.   We can expect more on those aspects in Part 2 of the CJC Report.

What the report does however (which is the main focus of this article) is to review and define the proper place for pre-action dispute resolution in civil justice, making firm recommendations about the relationship between the PAPs and the CPR generally.  The Report acknowledges that there is a degree of subsurface controversy over the extent to which courts have legitimate jurisdiction (i.e. vires) over the resolution of disputes which have not been formally issued.  Of course there are pre-issue procedures available, like applications for pre-action disclosure, and interim injunctions; effective Part 36 offers can be made pre-issue; and CPR44 specifically authorises judges to take pre-action conduct into account when determining costs orders. The Report recommends that the relationship between the PAPs and the CPR generally should be formalised, if necessary by primary legislation, by including a duty to observe the PAPs in CPR1’s overriding objective, and thus making available to judges the case management powers under CPR3, such as stay, adjournment, consolidation, costs sanctions for rule breach, and striking out, when dealing with default in pre-action conduct or significant non-observance of PAP obligations.

The Report notes the patchy enforcement of PAP obligations hitherto and the apparent reluctance of judges to make adverse interim summary costs orders against parties who fail to observe their PAP obligations.  It comes down firmly on the side of making it clear that PAP obligations are mandatory and that significant breaches should be sanctioned.  Rather than setting out separately what such consequences might be (including whether a claim or defence might be struck out), the Report notes that wide powers already exist in CPR 3, and that with proportionate performance of PAP obligations required by the overriding objective included into CPR1, these powers, as explained in Denton will be readily exercisable within existing judicial discretion.

During the pre-action phase when there is no access to a judge for overseeing performance of PAP obligations, the Report devises a Notice of Default which one party can serve on the other specifying their complaint, and to which later reference can be made if proceedings are issued.

The Report recommends replacing the current PD:PAC with the General PAP appended to the report.  Its detailed effect will be discussed more fully later.

3. Guidance to the Draft General PAP

The Report as a whole is based firmly on the premise that the vast majority of civil claims settle already, and that the purpose of all the PAPs is to make pre-litigation settlement fully possible, based on mutual disclosure of key information required for this to be seriously considered.   A section of the Report is devoted to setting out the guidance to the General PAP, which highlights the intention of this whole review.  The headlines of this are:

  • Litigation is to be a last resort;
  • Compliance with the PAPs is to be mandatory except in urgent cases (e.g. limitation or urgently required relief, such as freezing or search);
  • Parties should co-operate to resolve complaints or disputes before resorting to litigation, – this is to be specifically incorporated by the overriding objective in an amended CPR 1;
  • Large organisations should publish clear and easily found contact details;
  • As it is not always easy to decide whether a claim fall within the ambit of a specific sector PAP, the General PAP will serve as overall guidance;
  • Compliance with PAPs is to be proportionate, with possible adverse costs sanctions for disproportionate conduct;
  • Formal offers of compromise may be made;
  • Honest disclosure of position and key documents is required, with severe sanctions possible for dishonest conduct;
  • Guidance about obtaining and using expert evidence.

4. The Shape of the General PAP

The obligations set out in the proposed General PAP take the form of three sequential steps:

Step 1 – Information Exchange

This stage embodies:

  • the Letter of Claim;
  • a Letter of Acknowledgement, required in 21 days, and which must identify any relevant insurer, and also indicate if it is believed that the wrong entity has been warned of the claim, giving the name of the correct entity;
  • and the Letter of Response which would be required in 90 days.  Provision of key documents is also required.  This is not to the level of standard disclosure in litigation, but does mean that significant relevant documents should be exchanged.  The risk in not doing so is a later suggestion of lack of honesty and openness, which might be sanctioned if established.  It is made clear that use of any key documents disclosed is limited to the claim in question and not for extraneous purposes.  Note that these proposals relate to cases which fall under the General PAP and not where covered by a sector specific PAP, whose provisions still fall to be reviewed in detail by the CJC.  This information exchange is deliberately required as a precursor to the dispute resolution stage which follows, so as to provide a sound basis for settlement discussions.

Step 2 – Dispute Resolution

This stage requires dispute resolution to be attempted.  It does not specify the process to be utilised, but it does draw a distinction between two tiers of process, depending on whether a neutral third party is involved, such as mediation or neutral evaluation.   If a third party process has been used which does not lead to settlement, parties will not be required to use such a process again within later proceedings (though they are free to choose to do so).  This provision will become relevant whenever rules allowing the courts to mandate mediation currently under consideration are introduced.  But if a dispute resolution process is conducted without a neutral (like a complaints process) is used, this exception does not apply and if court rules or a judicial order may require mediation or evaluation, there is no exemption from a court-required neutrally run process.  This is discussed further below.

This section firmly avoids any hint that settlement is compulsory.  It is obligatory to use a dispute resolution process, but parties are free to go to court if the dispute is not settled.

The Working Group’ Interim Report recommended imposition of the need for  “good faith” participation in dispute resolution processes, but it has discarded that idea in its Final Report as any such obligation is hard to define and police.

If parties cannot agree on what process to use, they are placed under an obligation to have a pre-issue meeting to discuss this disagreement and try to resolve it, before proceedings can safely be issued.

Mediation is deliberately given a higher profile as a desirable process, neutrally run.

The General PAP will make it clear that correspondence about exploring settlement will remain privileged, but courts will be able to be shown correspondence about the setting up (or not) of a process and evidence that it has taken place.

As to Small Claims under £500, use of a dispute resolution process will be advised but not compulsory.  Digital platforms may build in some kind of ODR process anyway.  The Report has a draft Small Claims General PAP appended.

Step 3 – Joint Stocktake

Several existing PAPs require a stocktake, although anecdotally they seem to be rare.  The new General PAP will require this to be done within 28 days of disagreement.  It will need to identify areas of agreement and areas of continued disagreement, together with a list of the key documents disclosed by each party by that stage of the claim, with a further list of documents sought but not disclosed and the reason why disclosure was not agreed and effected.

As noted in Section 6 below, the Joint Stocktake Report may effectively become part of the pleadings in simpler cases, so it will need careful drafting to ensure that the issues are defined and narrowed.

Without the General PAP providing as such, this could be a job conveniently done at the end of a mediation which has not led to settlement.

5. Improving Resolution of Pre-Settlement Costs Liabilities

Interestingly, the report argues that judicial delay of allocation of costs liabilities in claims until the conclusion of the litigation as a whole as creating both a perverse incentive to issue proceedings and as weakening the discipline needed to incentivise observance of PAP obligations buy generating a sense of impunity for refusers.  This is dealt with in a compelling paragraph, reproduced in full here:

Some judges during the consultation also indicated that the judiciary might be reluctant to make orders about the costs of proceedings over PAP non-compliance before those proceedings were resolved. The WG would urge the judiciary to resist that sentiment as a general approach. First, there is no jurisdictional barrier that would prevent the courts from exercising their powers to make costs orders at an early stage of the proceeding. Secondly, the tendency to address costs only at the end of proceedings is arguably just as bad for promoting PAP compliance as it is for promoting proportionate costs. We know detailed costs assessments at the end of litigation are not effective either at keeping costs proportionate or even their stated objective of ensuring the successful party recovers their reasonable costs.35 Prospective costs orders, like prospective costs management, carries a risk that a court will make an order it would not have at the end of the proceeding with the benefit of full hindsight, but given the deleterious effects that dealing with costs at the end of proceeding has had on the administration of justice – a phenomenon recognised in virtually every review of the civil justice system – we think there is a strong case to be made for courts being prepared to make more costs orders at an early stage of proceedings due to PAP non-compliance and its likely impact on the litigation. The same response can be made to judicial concerns about compliance disputes taking up court time. Deferring compliance disputes can only save court time if the issue is never addressed, and if compliance disputes are never addressed, it is hardly surprising that levels of compliance would become variable at best. 

The apparent reluctance among judges to make interim costs orders over PAP non-compliance or other early alleged unreasonable litigation conduct strikes as odd to anyone who remembers what happened at around the time of the introduction of the CPR in 1999.  Before then, the QB/KB Masters lists in the “Bear Garden” in the Royal Courts of Justice, like every District Registrar’s list, were crammed with short applications filed largely for tactical purposes.  A Practice Direction was issued to say that courts would now have the power to make summary determinations of the amount of costs where any application lasting no more than a day was decided against a party, and would normally order payment immediately rather than at the end of the litigation.  So costs would no longer necessarily be ordered “in the cause” or “reserved to the trial judge”.  Losing lawyers might expect to be applying to their clients for a cheque to pay their opponent’s costs on an application which the lawyer had advised was worth making.  Unsurprisingly this had an immediate chilling effect on the issuing of chancy applications.  Lists were reduced to a few CMCs per day, and Bear Gardens and County Court Chambers around the country became havens of calm overnight.

The rules for summary assessment and payment remain the same under CPR44 and its PD.  The latter provides[1]: 

The general rule is that the court should make a summary assessment of the costs – 

(a) at the conclusion of the trial of a case which has been dealt with on the fast track, in which case the order will deal with the costs of the whole claim; and 

(b) at the conclusion of any other hearing, which has lasted not more than one day, in which case the order will deal with the costs of the application or matter to which the hearing related. If this hearing disposes of the claim, the order may deal with the costs of the whole claim. 

Note the underlined words.  Note also these further provisions of CPR44:

44.7  (1) A party must comply with an order for the payment of costs within 14 days of –

(a) the date of the judgment or order if it states the amount of those costs;

(b) if the amount of those costs (or part of them) is decided later in accordance with Part 47, the date of the certificate which states the amount; or

(c) in either case, such other date as the court may specify.

44.8      Where –

(a) the court makes a costs order against a legally represented party; and

(b) the party is not present when the order is made,

the party’s legal representative must notify that party in writing of the costs order no later than 7 days after the legal representative receives notice of the order. 

The CJC Report makes a powerful point (as apparently did many respondents to its call for evidence) that the PAPs have simply not been enforced properly.  There have been very few reported instances of a costs sanction being imposed for failure to observe a PAP, partly because observance has not hitherto been mandatory (as is now proposed) and partly because judges have declined to make an early costs sanction, preferring to postpone he allocation of costs liabilities to the overall view of a trial judge.  In a jurisdiction in which trial judges are only enlisted for decision in a tiny proportion of issued claims, this hardly represents an incentive to parties to take seriously any pressure that the PAPs have placed on them to explore settlement.  While the Churchill hearing will have lasted more than a day, many applications relating to observance or not of the PAPs may well last no longer than that.  In any case costs to be assessed can be ordered at an interim stage.

As noted above, the CJC Report intends to return to the topic of amending or replacing Part 8 procedure for assessing costs in cases settled before action.

6. “Harnessing” These Changes to Improve Litigation of Unsettled Claims

There is some interesting albeit preliminary thinking about whether properly performed obligations under the General PAP might be utilised to save activity and thus cost when cases enter litigation unsettled.  This includes the possibility of permitting the Letters of Claim and Response, and the Joint Stock-take report, with its lists of disclosed and as yet undisclosed documents to stand in place of the pleadings.  Clearly this will not be feasible in complex commercial litigation to which the General PAP will at least nominally apply, but it may be possible in simpler cases, and might even be facilitated by the development of digital platforms which enable this to be done easily.

7. Sanctions for Non-Compliance

These have been discussed to some extent above.  If the link between the PAPs and the CPR, especially with the overriding objective in CPR 1 is established as recommended, then the court’s wide and potentially draconian case management powers under CPR 3 will certainly be engaged.

Two further issues are discussed.  Firstly, the Report suggests that sanctions may arise if a party materially changes their pre-action position without good and well-explained justification.  Secondly, it discusses whether statements of truth should be required of Letter of Claim and Response and Joint Stock-take Reports, but concludes that they should not.  Whether this might have to change if they become the pleadings (bearing in mind the need for statements of truth on pleadings) is not considered.  A reminder of the consequences of dishonesty as outlined by the Court of Appeal in Jet2Holidays-v-Hughes [2019] EWCA Civ 1858 is given.

8. A Fortuitous Practical Example – Churchill v Merthyr Tydfil BC

By chance the Court of Appeal is due to hear an appeal in the Churchill case in November 2023.  It concerns a claim in nuisance brought by C, a landowner, against Merthyr Council (MT) who owned adjoining land and who, it is claimed, were responsible for allowing the escape of Japanese knot weed from their land onto C’s land.  Pre-action conduct will therefore have been governed solely by the current PD:PAC, and the Court of Appeal will have to consider the appeal on that basis of the terms of PD:PAC.  But it is instructive to review what would have been the position in the Churchill case under the new draft proposals.  To do so requires review of the facts of the Churchill case as set out in the District Judge’s judgment.

C had first noticed the infestation in 2016, but only contacted solicitors specialising in knotweed claims in 2020 after seeing an advertisement.  They eventually wrote to MT in October 2020 enclosing a 70 page report about treatment plus a valuation of C’s property, presumably alleging diminution in value.  This was the first that MT heard of any claim.  In January 2021 MT’s legal officer replied, commenting on the delay in notification and referring to the Council’s Corporate Complaints Procedure (CCP), asking why it had not been invoked.  He warned that a stay would be sought for this to be used if proceedings were started.

However, proceedings were started, claiming just under £43,000 and including treatment costs of nearly £26,000.  MT filed a defence, although the knotweed incursion seems not to have been disputed.  At the CCMC, C filed a costs budget of over £150,000 inclusive of VAT to trial.  Up to the CCMC, C’s costs were put at £36,000 inclusive of VAT.

MT applied for an order effectively that C should engage in the CCP, and should be sanctioned for not having done so pre-issue.  The Deputy District Judge took the view that,  while the CCP qualified as a form of “ADR” he could not order C to engage in the CCP, as he was bound by the Halsey decision.  He firmly found that C had acted unreasonably and contrary to the spirit of the PD:PAC.  However he declined to impose an immediate costs sanction, leaving that question to the trial judge.  The DDJ further refused to accord “without prejudice” privilege to correspondence about whether C would or would not engage in the complaints process.

The essence of the appeal is whether the DJ was right to find that although the PDPAC empowered him to stay the proceedings for compliance with its terms, he could not order C to engage in the MT complaints process because of Halsey, by which he was bound, and therefore there was no point in ordering a stay.  Whether or not the Court of Appeal will decide that judges do have a discretion to order engagement in “ADR” is moot.  But it only has a marginal impact on consideration of the changes proposed in the draft General PAP, and how that would have made a difference to the facts in Churchill.

Could C’s lawyers have approached the pre-action handling of C’s case in the way they did under the terms of the General PAP?  What they did do, when instructed four or so years after C first noticed the knotweed, was to investigate C’s claim thoroughly and expensively over a period of some months, including assembling considerable expert evidence, and then first notify MT of the claim (it would seem) virtually as a fait accompli to be paid forthwith without argument.  The costs and report fees expended by C up to that point are not separately reported, but they were probably well into five figures.  The judgment does not report what happened between the Letter of Claim dated 29 October 2020 and the issue of proceedings on 21 August 2021, ten months later.  But we know that the CCP was not invoked nor was any other “ADR” process employed.  MT’s Letter of Response certainly threatened an application for a stay under PDPAC, though their application was only issued on 15 February 2022.

Paragraph 15 of the PDPAC, reads: 

  1. Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that

(a) the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction;

(b) the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction;

(c) sanctions are to be applied. 

But like everything else in the PDPAC, the language is of permission and discretion and not of compulsion.  The DDJ saw no point in ordering a stay as C could not be compelled to use the CPP, and so although he could have done so – and clearly disapproved thoroughly of C’s approach to the litigation –  he felt that forcing the litigation to a conclusion without pause was the better approach, at which stage (but not before, he decided) the question of whether and how to sanction C’s conduct could be decided at the end of that trial, with the judge in full possess of the facts to determine the facts and respective levels of guilt.

However, the requirements of the draft General PAP are emphatically compulsory.  Whereas the PDPAC starts by talking of the steps that “the court would normally expect parties to take before commencing proceedings”, the General PAP starts firmly:

The pre-action protocols set out the steps the parties must take before starting proceedings. The parties must not start court proceedings without first complying with a protocol. Compliance with a protocol is mandatory except in urgent cases. 

If a sector specific PAP does not apply, then “the parties must comply with this [General] protocol before starting proceedings.” 

The required steps are also compulsory:

4.1         The parties must take three sequential steps before starting a claim; each subsequent step is dependent on compliance by both parties with the previous step. The three steps are: 

(i) Early exchange of relevant information by all parties

(ii) Engaging in a dispute resolution process

(iii) Completing a joint stocktake report. 

When it comes to dispute resolution, after explaining that most civil claims are settled before trial and the PAPs seek to bring that about before the last resort of litigation is initiated, the General PAP provides:

4.11       The parties to any dispute are therefore required to engage in a dispute resolution process with each other prior to any proceedings being issued.  This dispute resolution process may involve, but is not limited to:

  • mediation: a neutral third party (called a ‘mediator’) assists the parties to try to resolve their dispute;
  • early neutral evaluation: non-binding evaluations by an independent lawyer who advises the parties on the strengths and weaknesses of their respective cases;
  • any applicable ombudsman scheme;
  • any dispute resolution scheme that the parties have joined;
  • a pre-action meeting: A meeting between the parties, either virtually, in person, or by telephone, to discuss the scope of their dispute, its root causes, and ways it might be resolved or narrowed.

4.12    If the parties are unable to agree on a particular dispute resolution process, then they must hold a pre-action meeting as specified above. 

The General PAP then draws a distinction between consequences where a dispute resolution process has or has not involved a neutral third party to manage it: 

4.14   Where the parties have engaged in mediation under this protocol [or any other dispute resolution process involving the assistance of a neutral third party such as early neutral evaluation, an Ombudsman etc.], and the dispute does not settle, then the parties will not be required to engage in another mediation if court proceedings are started.

These detailed quotations demonstrate very clearly that C’s pre-litigation conduct in Churchill would have been wholly non-compliant with the draft general PAP.   C declined to participate in the CCP – which seems capable of being treated as a “dispute resolution process” as this phrase is not exhaustively defined in 4.11 above – nor in any other dispute resolution process.  The next identified step taken by C after the Letter of Claim with expert reports attached was to issue proceedings, though there may have been correspondence exchanges meanwhile.  But there would have to have been a pre-action meeting as defined in paras 4.11 and required by 4.12 above before C could safely issue.

The Draft General PAP does provide that:

1.3   Claimants should give defendants a reasonable time to deal with complaints, and defendants should deal with complaints promptly. Nothing in this guidance prevents a claimant from starting court proceedings if their complaint is not resolved by a defendant. 

Whether C’s lawyers would have made hay by reference to this provision, with the underlined words of somewhat opaque significance, will remain unknown.

Furthermore, it is arguable that C’s approach to preparation of his case was wholly disproportionate in time and cost. MT suggest that the infestation complained of could be treated for £250 or so, presumably eliminating any diminution of value to C’s property.

Concerns may well have been felt by mediators and mediation providers about courts treating something like a complaints system such as a local authority’s CCP, as a form of dispute resolution process[1].    Strikingly, the draft General PAP distinguishes between dispute resolution processes involving a third party neutral and those which do not.  The CCP clearly falls within the latter, whereas mediation, evaluation and ombuds review fall within the former, and it is only if one of these has been used that a party is excused from being compelled into repeat use, though they can opt to do so again voluntarily.  So C would still be compelled at least to use the CCP by virtue of the General PAP, but in doing so might still be required to use mediation by the court at a later stage.  The two-tier classification of dispute resolution processes is helpful, and likely to allay concerns among mediators.

What is startling about the draft General PAP’s requirements is that, as drafted, they make mandatory pre-issue what is not currently mandatory post-issue under the CPR[2].  The CJC’s June 2022 Report on Mandatory ADR does argue that for mediation to be made mandatory by rule or judicial decision is lawful and broadly desirable, and the CJC Report on the PAPs does mention this.  There are proposals afoot to make mediation mandatory for claims of not more than £10,000, but these are not yet in place.  The Churchill appeal may itself declare a change in what Halsey is said to establish on this, as there has been considerable criticism of the juridical basis for its saying that for a court to order use of mediation or other dispute resolution processes breaches ECHR Article 6 rights.

9. What Next?

It will be interesting to see whether the Court of Appeal in Churchill might be influenced by this latest CJC Report into drawing a two-tier approach to neutrally managed and non-neutrally managed dispute resolution processes.  Maybe the law or the rules of procedure will be changed whatever the outcome of Churchill.  A decision really has to be made as to whether judges may in their discretion and on appropriate facts have the power order parties to utilised mediation.  The current position is self-evidently confused, with Halsey much-criticised over this.  Why this should be inherently wrong is not clear, and Article 6 of the ECHR is not the answer.

We know that the CJC Working Group is going to continue to look at the sector-specific PAPs, but in the light of their draft General PAP, it would be surprising indeed if they did not recommend a similar three stage process for the other PAPs, including an effectively mandatory dispute resolution stage.  Opposition to this, and thus considerable delay in firm and final implementation (or not) is almost inevitable.  But critics are going to have to face the fact that the vast majority of civil claims resolve by agreement, and only a very small proportion get to trial, even if a significant number are issued (even if dwarfed by the number that settle pre-issue).  If therefore settlement is overwhelmingly likely, then it is hard to resist the introduction of steps that bring settlement as early as possible, producing savings in time, cost and stress for parties.

The overall picture is one of likely change, but change is always wrought slowly in the civil justice system, and the kind of world visualised by the CJC report on PAPs may yet take an appreciable time to establish.  This is a space that will need close watching for a considerable time to come.


[1]   Note the fact that the acronym “ADR” does not appear in the General PAP, and only sparingly in the CJC Report as a whole, usually only acknowledging the acronym to reflect historic use.

[2]  Except, oddly, judicial neutral evaluation – see CPR 3.1(2)(m) and Lomax v Lomax


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