There have been a number of recent changes and proposals with an aim of streamlining the litigation process in England and Wales. The focus has been on maintaining our “world class” legal system whilst enabling access to justice across England and Wales. What are these changes and how might they impact on the types of property litigation claims (i.e. dilapidations and service charges) that we deal with on a regular basis?
Business and Property Courts
The new Business and Property Courts are intended to bring together judicial expertise in finance, business and markets, property, IP, Technology and construction. The hope is that the name “Business and Property Courts” will help to make the Court process more accessible and easy to understand and that the re-branding will help to attract international disputes to the Courts in England and Wales, particularly with Brexit becoming a reality.
As Ian Duncan Burnett, the Lord Chief Justice, said recently at the opening of the Business and Property Court in Bristol, the Rolls Building is not “an island unto itself” and the establishment of these regional centres is “of great importance” to the delivery of justice across England and Wales.
The intention is to enable, in close connection with the Rolls Building in London, claims to be tried in the most efficient and cost effective manner available by providing greater flexibility in the cross-deployment of judges with suitable experience to sit on appropriate business and property cases.
The Lord Chief Justice believes this will change the way in which cases are issued in London and the use of London based lawyers, however complex or large the litigation.
Other steps to streamline the process are also being taken with a further review of the fixed recoverable costs regime by Lord Justice Jackson. In summary, Jackson has stated the only way to control costs effectively is to do so in advance, before parties have run up excessive bills, either by a general scheme of fixed recoverable costs or by imposing a budget for each individual case.
The recommendation consists of a two-year pilot that is to be introduced to test the use of a capped costs scheme in the High Court. This will be tested for claims valued up to £250,000 which are proceeding in the London Mercantile Court and the three specialist Courts in the Manchester District Registry and Leeds District Registry, namely the Mercantile, Technology and Construction and Chancery Courts.
The pilot is designed with a view to have a streamlined procedural code similar to the Shorter Trials Scheme including a trial to be fixed within eight months of the first Case Management Conference. The pilot proposes special rules for Part 36 offers, so that where a party has failed to beat an opponent's offer costs will remain subject to the capped amounts but (in respect of claimants' offers) subject to an uplift of 25%.
There is no start date for the two-year pilot as yet but it is a hot topic as more and more cases may move to different Courts outside of London, Manchester and Leeds.
As a large contributing factor to the cost of litigation, disclosure has been a bugbear for some time.
A Disclosure Working Group (“DWG”) was set up in 2016 to review the process with a focus on not only the cost but also the scale and complexity of disclosure. The unanimous view of the DWG was that the approach to disclosure needed a cultural shift that, it felt, would only be achieved by an overhaul of the current rules and guidelines requiring more pro-active case management.
The DWG’s proposals were published on 2 November 2017 and include a two year pilot scheme to be set up in the Business and Property Courts in London, Birmingham, Bristol, Cardiff, Leeds, Manchester, Newcastle and Liverpool. The proposed scheme is expected to be submitted to the Civil Procedure Rules Committee for review and approval in March/April 2018.
Further consultation and feedback on the proposals has also been sought from members of the judiciary, professional associations and user groups in London and the regions. The consultation period finishes on 28 February 2018. Further streamlining of the litigation process is clearly possible and likely a necessity. Our view is that the changes proposed should be embraced by all users of Court services. There is clearly already significant judicial and governmental support.
That said there are likely to be challenges, as well as opportunities, that present themselves in the drive to streamline the litigation process and in the development of these regional legal centres. However in our experience the likely benefits for property litigation matters are clear. Access to local experienced judges being at the forefront of those with fixed cost exposure, limited disclosure and shorter timeframes being essential to the swift resolution and a return to business as usual.