How neutral evaluation can help resolve disputes in the pre-action phase of civil litigation
12th January 2022
More reform!
On 15 November 2021, the Civil Justice Council (CJC) published the Interim Report of the Council’s Working Group on Pre-Action Protocols (the Interim Report), which was only open for responses until 10 am on 24 December 2021.
The Interim Report has enjoyed a long gestation and presents ideas, but fails to make any specific recommendations about the way forward. This is the latest attempt at reforming the Pre-Action Protocols (PAPs), first mooted in another consultation in December 2020 (the Preliminary Consultation). The purpose of that exercise was to test the water about the terms of reference for this consultation. Unsurprisingly, the views of 117 respondents to the Preliminary Consultation have influenced the Working Group’s deliberations: the evidence gained from the Preliminary Consultation is referenced throughout the Interim Report, which confirms the need for practitioners to engage with these exercises.
Along with the recently closed Ministry of Justice (MoJ) Call for Evidence about Dispute Resolution in England and Wales (August 2021) and the CJC’s Compulsory ADR Report (June 2021), the November consultation indicates the CJC Working Group’s thinking about the way reform will be shaped during 2022.
What does this mean for civil justice?
It has been clear to any alert observer for some time: the action in civil litigation is shifting to pre-action.
The Interim Report offers much food for thought, and debate, but three aspects occupy this article:
The Online Opportunity
A central proposition is that the work required by the PAPs will be undertaken in secure, Cloud-based platforms which will be accessed by Professionals and Litigants-in-Person (LiPs) alike via a portal that will assist to choose the correct PAP platform using a series of intuitive questions.
The combination of PAPs and platforms is nothing new with the earliest of these platforms in place since 2013 – the Claims Portal. In May 2021 the Official Injury Claim (or Whiplash) Portal went live. Each implements a PAP.
The Preliminary Consultation canvassed respondents’ support for working online in pre-action. A whopping 82% of those responding to this question expressed support for completing the pre-action phase online. DEF was pleased to be amongst the 82%.
The (A)DR processes
A duty of good faith is proposed to be included in all PAPs to ensure that parties engage meaningfully in some form of (A)DR.
Recommended forms of (A)DR are to be listed in the refurbished PAPs and includes for the first time express options of ‘ad hoc negotiation’ and ‘Early Neutral Evaluation’ [See para 3.21 on pp 30 and 31 of the Interim Report.] The list of suggested (A)DR processes (including neutral evaluation) is repeated at the end of the Appendix 6 (dealing with Personal Injury PAPs) at para 59 on p. 133 which proposes a common structure for all PAPs.
Early Neutral Evaluation appears to be emerging as the most likely and preferred modality. It has received endorsement in two recent CJC reports and attention is drawn to it in three places within the Interim Report. In addition to para 3.22, Evaluation is referenced in appendix 6 of the Interim Report which considers specific PAPs for Personal Injury including Clinical Negligence and, at para 9, final bullet on page 125, states:
“The ability to obtain judicial directions pre-issue, which is likely to require an expansion of the court’s jurisdiction, in cases where parties cannot agree a way forward might be beneficial (rather like early neutral evaluation).”
The CJC clearly recognise the value of an Evaluative system that helps parties to focus attention on relevant issues at an early stage. This is a model that has been working very successfully for many years for ‘the Independent Evaluation & Facilitation Service’, otherwise known simply as IE.
A particular ‘game-changer’ now is that the NHSR have endorsed a preference for early Evaluative solutions, even to the point of suggesting ‘mandatory’ engagement in it.
Avoiding disputes and satellite litigation
Respondents to the Preliminary Consultation frequently lamented the failure of other parties to comply with the requirements of PAPs. Consequently the obligation to engage in (A)DR is proposed to be subject to a duty of good faith.
What does this mean? Parties must engage in (A)DR and do so in a meaningful manner. Whatever form (A)DR takes the process used must be completed within 8 weeks. This leads to potential satellite litigation.
The duty of good faith might be likened to an honesty box. However, unlike other honesty boxes this box comes with CCTV. This takes the form of a stocktake exercise and report to the Court. The stocktake report is to be signed by the representatives of both parties and filed by the Claimant with the Court at the commencement of any Court proceedings. The proposal is for breaches to be penalised at the outset of proceedings by the full range of sanctions, including stay or strike-out. You have been warned!
Will any of this happen?
As consultation followed consultation during 2020 and 2021, the unequivocal impression is given that the CJC and Senior Judiciary have a vision which will be implemented in short order. The hard work undertaken by the CJC in 2020 and 2021 is playing a central role in developing reforms for implementation in 2022.
It is striking that suddenly the ‘Alternative’ is being dropped and there is Dispute Resolution. The probability is that Pre-action Dispute Resolution will become the norm in the years ahead.
Tony Guise is the Director of DisputesEfiling.com Limited (DEF) which is the provider of Cloud based platform for the management of evaluations to Independent Evaluation and Facilitation Service (IEFS) Limited. Tony is a past President of the London Solicitors Litigation Association and writes regularly on issues concerning civil justice reform in England and Wales.
