Civil Justice Council Proposed Reforms To Pre-Action Protocols Include Controversial ADR Provisions

Published date11 February 2022
Subject MatterLitigation, Mediation & Arbitration, Arbitration & Dispute Resolution
Law FirmHerbert Smith Freehills
AuthorHerbert Smith Freehills

Recent Civil Justice Council proposals for reforms to the civil pre-action protocols (PAPs) have sparked some concern that, if they are intended to apply to commercial disputes via a default general protocol, they would represent a departure from current practice and a significantly more prescriptive approach.

Amongst the more controversial suggestions is the introduction of a "good faith obligation to try to resolve or narrow the dispute at the pre-action stage".

This would go significantly further than the current PAP requirement to consider ADR at the pre-action stage, and would arguably amount to a mandatory ADR gateway - requiring the parties to take a "concrete step" toward settling the dispute, as a distinct stage in a series of successive preconditions to commencing proceedings.

In the context of the ongoing separate review into the...

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