Civil Justice Council report calls for pre-action protocol on judicial review to require parties to make positions on ADR clear

The pre-action protocol (PAP) for judicial review should be amended to make sure the parties make clear their position on alternative dispute resolution (ADR) at an early stage, a report produced for the Civil Justice Council (CJC) has recommended.

The CJC report Pre-Action Protocols Phase Two Report (Final) looked at the PAPs for:

• Personal injury
• Housing
• Judicial Review
• Debt
• Construction and Engineering Disputes
• Professional Negligence
• Debt Claims
• Media and Communications

It also examined and made recommendations on a new PAP for multi-track litigation in the Business and Property Court.

The section on the PAP for judicial review was drafted by a sub-committee chaired by Professor Maurice Sunkin and Jo Hickman.

On ADR it said: “As many of the consultation respondents noted, ADR in judicial review cases is rare. There are several reasons for this including that judicial review often involves a binary dispute on a legal issue which only the court can resolve. Some cases are so urgent ADR would impede, rather than facilitate, timely resolution.

“However, as recognised as long ago as Cowl and others v Plymouth City Council [2001] EWCA Civ 1935, there are also some judicial review cases where ADR will be appropriate and the court can make case management directions to enable it to happen. Churchill v Merthyr Tydfil County Borough Council confirms the court’s powers extend to compelling parties to engage in ADR, even when one is unwilling.”

The report said this development underscored the importance of the points made in the current protocol at paragraphs 9-11 and paragraph 6.2.6 of the Administrative Court Guide: “before proceedings are issued, the parties are required to consider whether ADR such as round table discussions, mediation or an Ombudsman scheme is appropriate, the court may require an explanation for refusal to engage and there may be cost consequences.”

It suggested that this was an area where further guidance might be helpful especially for litigants in person.

“Going forward, we recommend that the protocol should prompt the proposed claimant to confirm in their pre-action letter that they have considered ADR, indicate whether they believe any form of ADR is appropriate before and/or after the proposed claim is issued and, if so, why. It should also prompt the proposed defendant to indicate in its response whether it is willing to engage in ADR and, if so, the form it considers is appropriate. If a proposed defendant rejects an ADR proposal made by the proposed claimant, it should give its reasons.”

The report said this would mean the parties’ respective positions on ADR were clear at an early stage. “In cases where ADR is appropriate, it should encourage ADR to be attempted (for example, during an agreed stay if proceedings have had to be issued) and assist the court in considering whether case management directions should include provision for ADR.”

The sub-committee meanwhile said it remained "strongly of the view" that there should be a distinct judicial review PAP that reflects the special needs and character of JR proceedings while aligning as closely as possible with the approach in a new General PAP and embracing the philosophy and lexicon of the new General PAP.

It added that it “enthusiastically” endorsed the five general principles set out in the CJC’s Review of Pre-Action Protocols: Final Report Part 1, namely that: starting court proceedings should be a last resort; there must be an early exchange of relevant information; the parties should behave reasonably and proportionately; the parties must actively cooperate with each other to achieve the overriding objective; and the parties should take reasonable steps to try to resolve or narrow their dispute.

The report said the new JR PAP should ensure that each of these is applied by the parties in good faith. “This enhanced good faith obligation should be fundamental to the conduct of the parties both at the pre-action stage and after proceedings have commenced.”

The sub-committee also said:

• The new JR PAP: this should be designed, maintained and developed in conjunction with the Administrative Court having regard to experience in other areas of the law. To aid litigants in person, it should be kept simple and clearly worded.
• Pre-action steps and a ‘stocktake’ duty: it remained of the view that the JR PAP should avoid prescriptive pre-action steps and there should be no ‘stocktake’ duty.
• Duty of candour: Given the Divisional Court’s clear view that the duty of candour applies at the pre-action stage, it recommended that the CJC and CPRC [Civil Procedure Rules Committee] work with the Administrative Court to ensure that the wording of the JR PAP fully reflects the requirements of the enhanced good faith obligation, including the duty of candour, at the pre-action stage.
• Legal aid: While recognising that extending legal aid is "a matter for others”, it observed that claimants often have difficulty obtaining high quality advice and representation at the pre-action stage because not all claimants are eligible, there are shortages of specialist solicitors especially outside London, and the rates and overall amounts paid by the Legal Aid Agency for pre-action work are not considered realistic by claimant solicitors.
• Summary costs procedure: It did not currently consider a summary costs procedure to be necessary in judicial review proceedings.

Commenting on the report, Sir Geoffrey Vos, Master of the Rolls, Head of Civil Justice and Chair of the CJC said: “I welcome the publication of the CJC’s Phase Two Report on Pre-Action Protocols. Pre-action protocols are vital to facilitating fair and proportionate dispute resolution. This second phase of work provides important recommendations about specific subject-area protocols. I very much hope that their implementation will be prioritised.”