Civil Justice Council recommends bespoke Pre-Action Protocol for Multi-Track claims in the Business and Property Courts

18 February 2025

5 min read

The CJC’s (Civil Justice Council’s) Phase Two Report on Pre-Action Protocols includes the recommendation of a bespoke Pre-Action Protocol for Multi-Track claims in the Business and Property Courts of England and Wales. The recommended Protocol includes a mandatory obligation that the parties engage in a pre-action dispute resolution process.

All civil litigation in England and Wales is subject to a Pre-Action Protocol, which sets out the obligations of the parties to disputes before Court proceedings are commenced.

The CJC report recommends that a bespoke Pre-Action Protocol be created for claims which, when issued at Court, will be suitable for allocation to the Multi-Track.

Getting on the right track

After Court proceedings have been commenced, civil claims are allocated to a case management ‘track’ based on factors including the value of the claim, its complexity and expected length of trial. Which track the claim is allocated to will affect the directions and timetable, length of time that the claim will take to reach Trial and costs that may be recovered by the successful party.

Certain types of cases are allocated to particular tracks. Regarding value, cases with a value of no more than £10,000 are ‘normally’ allocated to the Small Claims Track, cases with a value of no more than £25,000 are ‘normally’ allocated to the Fast Track, cases with a value of no more than £100,000 are ‘normally’ allocated to the Intermediate Track and cases with a value of more than £100,000 are ‘normally’ allocated to the Multi-Track.

The latest civil justice statistics published by the Ministry of Justice record that 5% of all cases are allocated to the Multi-Track and there was a 29% increase in the number of cases allocated to the Multi-Track in the quarter of July to September 2024. The recommendation of a bespoke Multi-Track Pre-Action Protocol will therefore be of interest to the large number of parties who are dealing with threatened or contemplated disputes where Court proceedings haven’t yet been issued and the value of the potential claim exceeds £100,000.

The recommended Multi-Track Pre-Action Protocol

The CJC report includes a draft of the wording for the recommended Protocol at Appendix 1. Notably, the word “must” is used 19 times in the draft wording — signalling just how strictly the Courts are likely to look at whether or not the parties have complied with the requirements of the Protocol.

The Protocol won’t apply if the case is urgent (such as when an urgent injunction is needed or the limitation period is about to expire), where the parties have already constructively engaged in a dispute resolution process or if all the parties agree in writing.

If the Multi-Track Pre-Action Protocol applies, its key requirements are set out below.

Step change

The draft Protocol sets out the following steps and timings:

The intended Claimant is to send a letter of claim.
The intended Defendant is to send an acknowledgement (and to request any “reasonable and proportionate” additional information) within 21 days.
The intended Claimant is to provide such information within 30 days of it being requested.
The intended Defendant is to send a letter of reply within 90 days of receiving the letter of claim or within such other time period as the parties may agree.
The intended Claimant is to respond to any threatened counterclaim within 28 days of receiving the letter of reply or within such other time period as the parties agree (although the Protocol states that this should be no more than 90 days).

The draft wording requires that the parties “must be honest with each other at all times” and refers to criminal sanctions if a party provides false information without an honest belief in its truth.

Obligation to engage in a pre-action dispute resolution process

Following the steps above, the parties are then required to engage in a dispute resolution process.

Indeed, the draft Protocol wording requires that the Claimant must provide an explanation to the Court if such a process was not engaged in. If the parties haven’t engaged pre-action in a dispute resolution process, the Court has the power to stay the Court proceedings to allow the parties to engage with a dispute resolution process at that point.

The example dispute resolution processes that are listed in the draft Protocol include a meeting between the parties (either in person or remote), mediation, early neutral evaluation and any applicable Ombudsman scheme.

Under a threat of sanctions being imposed, both parties are required to write to the Court to explain the steps taken to seek a resolution, as well as “the reasons why such steps have failed”. We expect that the latter issue will often be contentious regarding the responsibility for a resolution not having been reached.

Even if a resolution isn’t achieved, the CJC recognises the benefits of the parties attempting a dispute resolution process by referring to such processes seeking to “avoid misunderstandings” and “help[ing] the parties to appreciate each other’s cases”.

Before going to Court, the parties are required to review their positions and perform a ‘stocktake’.

If the intended Claimant still wishes to commence Court proceedings, the draft Protocol requires that the intended Claimant then informs the intended Defendant that Court proceedings are about to be issued and the above steps have been complied with.

Even once Court proceedings are underway, the CJC’s draft Protocol recognises that “throughout the course of the proceedings” the parties should continue to cooperate and narrow issues in dispute.

It’s now for the Civil Procedure Rule Committee (CPRC) and the Online Procedure Rule Committee (OPRC) to consider how to take forward the CJC’s recommendations.