P.89 of the 92 page ‘CJC Review of Pre-Action Protocols Final Report Part 1, August 2023’, states:

‘3.1 3.2 The parties should at all times be truthful and open in their pre-action dealings and communications with each other about their dispute. As the matter progresses, you will be required to give signed confirmation of the truth of certain matters in the dispute. There are serious criminal consequences for anyone providing false information in a document which contains a statement of truth, whether the document has been prepared before court proceedings have started or during court proceedings. A statement of truth confirms that a party believes that the facts in a document are true.’

So, if in a ‘Key’ pre-action communication/document which requires a statement of truth, a party knowingly makes a false representation e.g. by alleging a revised factual narrative that is demonstrably false, i.e. because logically, it is self-contradictory, then it would appear to follow that this may result in a criminal investigation and prosecution.

If my understanding is correct & if these proposals are implemented, then this will deter unmeritorious claims before significant costs have been incurred, i.e. ‘nuisance value’/’try-on’ claims.

That would be a litigation “cultural” game-changer, because I suspect that a lawyer working under a CFA, would not want to go near such a claimant with a barge-pole, as in effect these proposed changes will result in a new and more rigorous standard of pre-action diligence, not only by the parties themselves, but also by their legal advisors – which of course will be an ongoing process throughout the conduct of the litigation.

Likewise, because what is said and written in a Mediation process, e.g. in a ‘Position Statement’, is and remains confidential, i.e. provided that is what the Mediation Agreement clearly & unequivocally states & all participants have signed it, then this may also encourage parties to enter into Mediation before they openly present any formal and detailed statement of their case in writing. In other words, if may encourage parties to engage in Mediation before a letter of claim has been issued, which could result in considerable cost savings. In a trust/estate dispute this is precisely the moment when preservation of the capital value of a trust fund/estate can be maximised by doing a deal & thereby avoiding the incurrence of unnecessary litigation ‘production’ costs.

Notes added:

NB paras 8.2 & 8.3 of the Report – ‘Sanctions for Materially Changing Position’. To my mind, the decision not to apply the rule in the Professional Negligence PAP to all PAP’s & generally, i.e. to those claims which do not have a PAP, e.g. Contentious Probate claims, does not axiomatically relieve a claimant who makes a false allegation in a ‘key’ pre-action communication/document signed under a ‘Statement of Truth’, from liability for making a statement which they knew at the time was ‘false’. In other words, this is not a procedural defence to ‘lying’. I think that a distinction can be made between: (i) unnecessarily causing costs to be incurred by presenting a revised narrative – which may of course be justified on the facts if new facts emerge, i.e. not ‘lying’; & (ii) the behaviour of a ‘delusional’ party (‘P’), who not only misleads the court by ‘lying’, but by knowingly making an allegation that is false, has thereby abused the litigation process. For example, where P ‘moves the goal posts’, by in effect inventing a fresh narrative, which logically, is contradicted by what he has previously asserted. Such a party will have dug themselves into a hole & the more they dig, the deeper the hole will become. What is your view?

In the new ‘ADR Normal’ there is of a course an increased risk that a party & his lawyer will ‘attend’ Mediation in order to: (i) go on a ‘fishing expedition’; and (ii) subsequently revise their narrative. So, where a Mediation fails, because it appears that a participant never had any intention of making an offer of settlement or of considering one, then should a Mediation Agreement provide that a participant may admit evidence of ‘apparent lack of good faith ‘ obtained during the Mediation, in support of a submission of suspected ‘lack of good faith’, when making costs submissions at the end of a trial, i.e. so that even in the other participant wins, all he obtains at trial is a ‘phyrric victory’?

Google:
– Civil Justice Council publishes final report on Pre-Action Protocols – Courts and Tribunals Judiciary
– CJC-PAP-report-Aug-23-FINAL.pdf (judiciary.uk)