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.
