In November 2021, The Civil Justice Council’s published its interim report on proposed changes to the current Pre-Action Protocols, which included a mandatory Alternative Dispute Resolution (ADR) gateway. In this article, we look at proposed reforms and consider what this could mean for your case.
On 15 November 2021, the CJC published its interim report on proposed changes to the current PAPs, which are aimed at making the process more accessible and efficient. The PAPs set out steps that parties to a dispute should take to set out their position and narrow points of dispute before starting Court proceedings for civil claims. The CJC has described the proposed reforms as “evolutionary rather than revolutionary” — but they do mark a significant shift from current practice, which has sparked concern amongst commercial litigators. The proposed reforms have not yet been integrated into the Civil Procedure Rules (CPR) (a procedural code which deals with how Courts treat cases justly).
A key objective of the proposed reforms to the PAPs is to increase pre-action exchanges between the parties to encourage early resolution and encourage the parties to narrow the issues in dispute.
Some of the key proposed reforms include:
For complex commercial litigation the reforms are likely to mean additional levels of case preparation at an earlier stage, which could make the pre-action stages of litigation more expensive than is the case currently by front-loading this element of the work. If parties are required to sign statements of truth it is likely to put an additional duty on solicitors to scrutinise the evidence in the case before issuing letters of claim/replies. In the absence of agreement, legal costs are not recoverable if a case is settled or abandoned before proceedings are commenced. An increase in pre-action legal costs as a result of the proposed changes to the PAPs (if adopted) could mean that parties are less willing to settle having invested more heavily in the pre-action phase and become more entrenched in their positions. This would undermine a key objective of the reforms: to improve economy and proportionality in litigation.
On the other hand, we expect commercial clients may welcome the CJC’s efforts to encourage compliance with the PAPs via an online portal and narrowing the issues in dispute. We hope that reforms in these areas might encourage parties to evaluate more critically the merits of their cases and avoid advancing weak arguments or claims, which in turn would reduce their legal costs.
If you have any queries about how the proposed reforms could affect your case if they are implemented, please get in touch with our Commercial Dispute Resolution team who would be happy to advise you.
Associate
Miriam.Onwochei-Garcia@brownejacobson.com
+44 (0)330 045 2975
Law firm Browne Jacobson has collaborated with Wiltshire Council and Christ Church Business School on the launch event of The Council Company Best Practice and Innovation Network, a platform which brings together academic experts and senior local authority leaders, allowing them to share best practice in relation to council companies.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023:
Announced in September but scrapped on 17 November the investment zone proposals were very short lived. The proposal has now morphed into the proposal for a smaller number of clustered zones earmarked for investment.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship. There are already restrictions on the extent to which personal injury claims can be settled by a settlement agreement. There have also been numerous consultations about the use of non-disclosure agreements and confidentiality clauses, particularly where allegations of sexual harassment and discrimination have been raised. In any event, it is clear that settlement agreements should not be used to prevent an employee from raising a protected disclosure.
On 2 November 2022, the Supreme Court handed down its judgment in the much awaiting case of Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30. The Court’s judgment suggests that the long established practice of using drop-in applications is in fact much more restricted than previously thought. This judgment therefore has significant implications for both the developers and local planning authorities.
Across the UK, homelessness is an urgent crisis, and one that is set to grow amid the rising cost of living. Local authorities are at the forefront of responding to this crisis, but with a lack of properties that are suitable for social housing across the UK, vulnerable individuals and families are often housed in temporary accommodation.
Claims arising from interest-only mortgages have been farmed in volume. Many such claims to date have sought to drive a narrative that interest-only mortgages are an inherently toxic product and brokers were negligent simply for suggesting them. Taylor is a helpful recalibration, focussing instead on what the monies raised by the mortgage product were being used for and whether the client understood the inherent risks.
In an effort to build a stronger justice system, a shift in priorities has emerged away from adversarial court battles and more towards opportunities for consensual resolution. As one of the most popular forms of Alternative Dispute Resolution (ADR), mediation has become increasingly encouraged.
Updates include UK Shared Prosperity Fund, contracts, Subsidy Control Bill, data controller liability, Government Covid-19 procurement and Highway Code revisions.
The complex and rather nebulous transitional subsidy control regime set out in the UK-EU Trade and Co-operation Agreement and the UK’s wider international commitments has made it difficult for public authorities and those working with them to proceed with certainty where subsidies are involved.
Investment zones have been introduced by the Conservative party to get the United Kingdom (UK) ‘working, building and growing’. They are to be designated sites which provide time-limited tax incentives, streamlined planning rules and wider support for local growth to encourage investment and accelerate the development of housing and infrastructure that the UK needs to drive economic growth. Processes and requirements that slow down development will be stripped back with the intention of attracting new investment.
In a judgment handed down yesterday the Supreme Court has affirmed that a so called “creditor duty” exists for directors such that in some circumstances company directors are required to act in accordance with, or to consider the interests of creditors. Those circumstances potentially arise when a company is insolvent or where there is a “probability” of an insolvency. We explore below the “trigger” for such a test to apply and its implications.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
Practice Direction 57AC (“PD57AC”) relates to witness evidence in trials and explicitly applies only to the Business and Property Courts. It applies to existing proceedings in which the witness statements for trial are signed on or after 6 April 2021.
It is clear that the digital landscape, often termed cyberspace, is a man-made environment, in which human behaviour dominates and where technology both influences and aids our role in it — through the internet, telecoms and networked computer systems, which are often interdependent. The extent to which any organisation is potentially vulnerable to cyber-attack depends on how well these elements are aligned.
Three months on from the commencement of the new statutory Integrated Care Systems (ICS) Anja Beriro and Gerrard Hanratty reflect on the main themes and issues that have come from the new relationship between local government and health.
The Supreme Court has unanimously dismissed the BTI v Sequana appeal and reviewed the existence, content and engagement of the so-called ‘creditor duty’; being the point at which the interest of creditors is said to intrude upon the decision-making of directors of companies in financial distress.
The Procurement Bill (the Bill) has now been with us for about four months, during which time there have been a huge number of amendments proposed in the House of Lords (circa 320). Lately, there has been less mention of it — unsurprising, really, given everything else going on in politics recently — but here’s a summary of some of the key issues and themes so far.
Browne Jacobson has been named as a supplier on Crown Commercial Service’s (CCS) Public Sector Legal Services Framework on Lot 1a – full-service provision (England and Wales) and Lot 2a – general service provision (England and Wales).
The increased use of artificial intelligence (AI) is revolutionising the way businesses operate and is having a disruptive impact in sectors that have traditionally been slow to modernise.
Welcome to our September edition of Public Matters, our monthly round-up of legal updates, news and insights for the public sector.
Since the UK left the EU and are now able to move away from the EU data protection regime, the UK government have implemented a national data strategy with the aim of reducing the burden on organisations but maintaining a high data protection standard.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
Devolution is the transfer of powers in areas like transport, housing and skills in England and since the Cities and Local Government Devolution Act 2016 has been a much-discussed topic.
In this article we look at local authority companies and whether they are subject to the Freedom of Information Act 2000. And for those that are, what information are they legally obliged to submit.
The Department for Levelling Up, Housing and Communities (DLUHC) has published a consultation on proposals to require Local Government Pension Scheme (LGPS) administering authorities (AAs) in England and Wales to assess, manage and report on climate change risks.
The concept of Legal Project Management (“LPM”) is increasingly relevant to the delivery of legal services, both in-house functions and private practice law. This is unsurprising, LPM is crucial if lawyers are to add value by controlling budgets, communicate pro-actively on risk mitigation and costs, and manage time by resourcing to deal with pinch points in the project.
Welcome to our August edition of Public Matters, our monthly round-up of legal updates, news and insights for the public sector.
On 31 August 2022, the Court of Appeal handed down the Judgment in respect of the appeal case of HXA v Surrey County Council and YXA v Wolverhampton City Council [2022].
This month, HM Treasury issued a consultation on Administrative Control Process for Public Sector Exits with draft guidance. They’re proposing to introduce an expanded approvals process for employee exits and special severance payments, and additional reporting requirements. If approved, the proposals will impact public sector bodies and those that do not have a specific right to make exit payments.
The focus on the Levelling Up agenda and the availability of grant funding, means there are numerous important regeneration schemes actively being pursued across the country. With ever-escalating project and building costs, in many cases, applications that were made for grant funding were based on costs contingencies that have already been exceeded.
The Government has recently published its response to the consultation on Subsidies and Schemes of Interest and of Particular Interest under the Subsidy Control Act 2022. In this article, our subsidy control experts discuss some of the key points coming out of the response, and their impact for public authorities.
Deprivation of Liberty Safeguards was due to transition to Liberty Protection Safeguards in October 2020 but delayed due to the pandemic. While the public consultation has now closed and we’re still unclear of what the final legislation and code will look like, it’s worth noting and keeping a watching brief.
In November 2021, The Civil Justice Council’s published its interim report on proposed changes to the current Pre-Action Protocols, which included a mandatory Alternative Dispute Resolution (ADR) gateway. In this article, we look at proposed reforms and consider what this could mean for your case.
The use of social media platforms and applications can have overwhelmingly positive benefits for public bodies. However, regulatory action recently taken by the Information Commissioner, has highlighted various pitfalls that public bodies should seek to avoid if allowing staff to use social media as a communication tool.
A Register of Overseas Entities was first proposed in 2016. Whilst progress over recent years has been slow, its establishment was given fresh impetus by the current tragic events in Ukraine.
Janice Walsh applied for a job with Domino’s Pizza, hoping to secure a role as a Delivery Driver. However things quickly took a turn for the worse during her initial interview, with the very first question that she was asked relating to her age. Ms Walsh was ultimately informed that she had not been successful in her application.
