If you are a party to litigation in England and Wales, you may hear one or more of the following statements from your adviser:
- It is unlikely that the claim, if issued, will ever reach a trial.
- If there is a trial, it will be at least a year from issuing the claim before it takes place.
- If parties agree to attempt the mediation of the dispute, it is likely that the mediation will result in a settlement (either at the mediation, or shortly thereafter).
I have been guilty of asserting these statements to be true, without considering the evidence supporting them. Fortunately, we live in an age of relative openness and there is plenty of data available to test these statements. Please note that the following analysis looks at data available in relation to civil claims and then some specific data relating to my area of practice, which primarily includes claims in the Chancery Division of the High Court, i.e., of relatively high value (worth more than £100,000) or complex claims relating to trusts, wills and probate matters.
(What follows comes with the (statistically unsupported) health warning that lawyers are generally more comfortable with words than with numbers!)
1. It is unlikely that the proceedings will get as far as trial.
The Ministry of Justice publishes a civil justice statistics quarterly bulletin, available online at www.gov.uk. Some of the bulletins provide a summary of previous years' combined data so, for example, the bulletin relating to the period July to September 2014 states that in relation to civil (excluding family) cases:
"From 2009 to 2013, it is estimated that between 2.6% and 3.5% of claims issued in a given quarter have gone to hearing or trial"
In the most recent (April to June 2015) bulletin, it states that:
"It is estimated that 3.1% of claims issued in the first quarter of this year will go to trial (with a range between 2.7% and 3.5%)"
The data summarised above relates to claims started in the County Court. If you are dealing with a claim in the High Court, therefore, you should be somewhat cautious in assuming that these figures will hold true there (and for all types of claim). As a Chancery practitioner, however, I have some additional statistical information available produced as part of the Chancery Modernisation Review by Lord Justice Briggs, which was published on 17 December 2013.
Over the period 2008 to 2012 (when data was collected for the Review), between 5.6% and 7.7% of claims issued in the Chancery Division in London went to a trial. If I am advising on such a claim, therefore, then I can adjust the base rate for claims which are likely to go to trial upwards to, say, around 1 in 20 cases.
It is also important to re-adjust our forecasts as we reach certain milestones. Just as the life expectancy of someone at birth (let's say, 74) will be different to someone who has already reached age 73 (e.g. they might expect to live a further five years), so a claim that is defended is more likely to proceed to trial than one which has only been issued and served. If it is actually listed for trial, then the likelihood of actually proceeding to a trial increases also.
This is borne out by data collected for the Review, which indicates that of claims issued in the Chancery Division in London (2008 and 2012), between 25.2% and 35.2% were listed for trial and, of those, between 18.3% and 23.7% actually proceeded to a trial. So, once such a claim is listed, the 1 in 20 chance becomes nearly a 1 in 4 chance of proceeding all the way to trial.
2. If there is a trial, it will be at least a year from issuing the claim before it takes place.
The civil justice statistics quarterly bulletin for April to June 2015 notes that there is an average waiting time of 53.4 weeks for a fast or multi-track claim (i.e., all non-family claims in the County Court that are not small claims) between being issued and trial, compared with 54.2 weeks in the same quarter in the previous year. So, it takes about a year to get to trial in the County Court.
In the Chancery Division in London, based on the figures collected for the Chancery Modernisation Review, the "waiting time" for a trial is between 38.8 and 47.5 weeks (a figure which increased year on year between 2008 and 2012).
One of the main determining features of how long it takes to get to trial is the estimated trial length. Again, we can test our assumptions here by reference to the extremely helpful information published online by the Chancery judges listing office at https://www.justice.gov.uk/courts/rcj-rolls-building/chancery-division/chancery-judges-listing-office.
For example, for a trial of one day or less where the Listing Appointment took place before 31 August 2015, participants would have been given a trial window of 1 December 2015 to 28 February 2016. For a trial of over 10 days, however, the trial window would be 1 November 2016 to 31 January 2017.
The variance between waiting times for longer and shorter trials, therefore, is more pronounced than the average waiting time might indicate.
3. If parties agree to attempt the mediation of the dispute, it is likely that the mediation will result in a settlement (either at the mediation, or shortly thereafter).
Based on personal experience, clients (whether claimant or defendant) are often initially reluctant to agree to attempt mediation as a means of resolving a dispute. Parties (and their advisers) tend to assume that the other party is too entrenched to mediate, or that they are simply too far apart, based on their pleaded cases, to stand any chance of finding any middle ground.
A persuasive point to make to clients when one experiences such reluctance is that most mediations result in a settlement. The Centre for Effective Dispute Resolution (CEDR) have carried out a number of "audits" of attitudes and trends in mediation by way of a survey of civil and commercial mediators. CEDR's Sixth Mediation Audit was published on 22 May 2014.
According to the respondents to the survey, 75% (or 3 out of 4) of cases settled on the day of mediation with 11% settling shortly thereafter. This is an aggregate settlement rate of around 86% of cases where the parties attempt mediation (in the 2010 and 2012 audits the aggregate settlement rates were around 89% and 90% respectively). These numbers suggest that mediation (if all parties can be convinced to attempt it) works in 9 out of 10 cases where the parties agree to mediate. An agreement to engage in mediation is therefore a significant step towards resolution of the dispute.
It is not clear what proportion of legal disputes (whether before or after claims are issued) are settled by mediation, as opposed to other forms of dispute resolution excluding final determination by the courts. However, the success rate for mediation based on the figures produced by CEDR is higher than that which would be suggested by my own experience of mediation, which demonstrates that one can get a distorted view by focusing solely on your own experience and ignoring the rates of success drawn from the combined experiences of the profession.