In an interim report published on 12 January 2016, Lord Justice Briggs has set out plans to radically overhaul the civil court structure in England and Wales, with the introduction of an online court (“OC”), for use by litigants without lawyers, as the compulsory starting point for money claims with a value up to £25,000.
The report was commissioned in July 2015 by the Lord Chief Justice and the Master of the Rolls, to look at ways to create a modern, efficient and accessible civil dispute resolution service. It coincides with the government’s commitment to a programme of court reforms, set out in Chancellor George Osbourne’s autumn statement. The interim report is published prior to a formal consultation which will close in May 2016. Responses to the report should be submitted by the end of February 2016, following which Briggs LJ will conduct a programme of meetings before publishing his final report in July 2016. The review follows the Judicial Executive Board’s proposals to re-structure the civil courts ten years ago, which were shelved in 2008. Since that time the Family Courts, Tribunals Structure and Chancery Division have all undergone restructure and/or modernisation, with the civil courts now lagging behind their criminal counterparts in the adoption of modernised IT systems.
Indeed, the civil court’s “limited, antiquated and inefficient IT systems” are cited as a major impediment to modernisation. The report suggests that the successful “radical digitisation” of the processes of the civil courts would completely transform the working practices of the court, opening up possibilities for modernisation, efficiency and improved service. Heavy government investment in IT, coupled with significant advances in the sophistication of online services, combine to make digital reform an urgent priority.
The creation of the OC is the single most radical and important structural change anticipated by the report. Briggs LJ envisages a court, the first of its kind in this country, designed for use from start to finish without lawyers. It would be intended to be used for the resolution of relatively simple and modest value disputes and would not replace the existing traditional adversarial system which is still fit for purpose in the resolution of complex issues of fact and law. There would be three stages:
- a largely automated, inter-active online process for the identification of issues and provision of documentary evidence which the court will need for the purpose of resolution;
- conciliation and case management, conducted mainly by Case Officers, probably online or by telephone rather than face to face;
- formal determination by a judge with no default assumption that a traditional trial would be necessary. A live trial would be regarded as a last resort.
It is not proposed that the entire procedure for resolution of disputes within the OC will inevitably take place online. Rather, the court will have discretion to use documents on screen, telephone, video or face to face meetings to meet the needs of each case. It is suggested that the OC would help to move away from the current court system being “designed by lawyers for lawyers” to one which is readily accessible to litigants in person. It would improve access to justice, by removing the “disproportionate expense and risk” attributable to legal representation. Briggs LJ said that in his view, the OC “offers the best available prospect of providing access to justice for people and small businesses of ordinary financial resource”. He also sets out his “strong provisional view” that the OC should be created “as a separate court, with dedicated software, staff, rules [designed from the outset to be understood by litigants without lawyers] and rule-making body”. Recognising the need for some form of assistance, the report suggests that some form of telephone helpline will be necessary.
The report also looks at ways to redistribute workload within an already overstretched system. Some steps, such as the recent introduction of the Financial List and the shorter/flexible trials pilot schemes, are already underway. To supplement this, the report proposes an increased role for Case Officers at all levels within the civil court system, with the transfer of some of judges’ more routine and non-contentious work. Case Officers are already in extensive use in most parts of the civil court structure, particularly in the London Costs Office, where more assessments are carried out by Case Officers than by Costs Judges. It is not intended that Case Officers will become a lower class of judge, with “clear blue water” being maintained between the work of judges and the work of Case Officers. Case Officers’ operational activity would be supervised by judges, to whom they would have recourse for advice, guidance and the ability to transfer any case-work deemed to fall within the remit of being genuinely judicial work. Court users would have the right to have the decisions of a Case Officer reconsidered by a judge, most probably by way of the decision in substance being taken again by a judge, subject to safeguards to prevent against abuse.
Other key themes considered in the report are the concentration of civil expertise amongst Circuit Judges and District Judges with all civil work with a regional connection being tried in the regions regardless of value. The latter entails increasing resources in the main regional trial centres to put them on an equal footing with London for the management and trial of large and complex civil cases. The report advises that there should not be a move to a unified civil court ahead of the implementation of the reform programme. The report also raises a number of questions for consultation purposes on both the main proposals for reform and issues such as rights and routes of appeal, enforcement and boundaries.
Amongst the provisional recommendations within the report, Briggs LJ also sets out a number of urgent priorities which include:
- Exploring options for easing the burden of the Court of Appeal. Although decisions on a package of measures are due to be made in early March 2016, written feedback on the issue is requested by the end of February;
- The preparation of the civil judiciary to play their part in the management of HMCTS reforms from April 2016 through the provision of Judicial College training and the provision of additional resources to support the leadership judges. Improvements to the structure for the operational management of civil workload are also required; and
- A consideration of the structural options connected with the reform programme, most notably designing the structure and software which will be needed for the OC.
Thanking Briggs LJ for a “remarkable piece of work”, the Lord Chief Justice, The Rt Hon Lord Thomas of Cwmgiedd said that “the time is ripe for reform, and it is in any event essential and unavoidable”.
What does it mean for you?
The proposals in the report, and the introduction of the OC in particular, are likely to be of significant interest to lawyers and businesses alike. The OC is envisaged as being suitable for use from start to finish without lawyers. The new system, with its new rules, would open up significant opportunities for effective self-representation, with potentially considerable savings on legal costs. In-house departments may not benefit immediately from the savings, because there will need to be an investment in training their resources in a different way of litigating.
Of course, the value of a case is not always an accurate indicator of the complexity of the issues to be decided. There will always be cases where, notwithstanding the value, legal advice is needed on the merits, or where assistance needs to be sought with navigating the process. Businesses that still wish to outsource work to external advisers can still anticipate cost savings as a result of more work being capable of being dealt with by junior or non-lawyers, at lower rates.
The obvious impact of the OC will be in respect of legal costs. Self-representation will save thousands of pounds in legal bills on modest value cases. These are often the matters where legal costs can quickly become disproportionate to the amount at stake. Parties find themselves entrenched in their positions for fear that capitulation will require them to pay the other side’s costs; which as against a claim value of £25,000 can equate to substantial proportion of the claim value. Removing (at least a proportion) of those costs from the equation will inevitably change the settlement dynamics for smaller cases and as a result we may see more disputes settle at an early stage. For those that cannot be settled, the question of how much, if at all, one side’s costs should be paid by the other, is highlighted as a specific area for consultation.
The impact of success of the new system in terms of resources has also yet to be fully understood. Under the current proposals, the OC will account for over 70% of the current workload of the civil courts. The OC aims to improve access to justice. A natural consequence of its success may, therefore, be an increase in the number of low value disputes coming into the court system. These may represent claims that commercial entities would previously have written off as uneconomic to pursue as well as claims that would not have been pursued against them for the same reason.
The OC proposals in particular are likely to be the subject of detailed discussion during the consultation period, with issues to consider including access to justice for those users who are likely to find using an online system difficult or impossible, as well as debate about the types of claims to be included within the compulsory use programme. A trial of the new court would be necessary during which a temporary initial £10,000 limit may be put in place, although Briggs LJ retains the ambition that the competence of the OC could, in due course, be increased beyond £25,000.
Comments in writing on the interim report are invited by the end of February 2016, ahead of further consultation on, and consideration of, issues ahead of preparing the final Review report by the end of July 2016. Comments may be sent to: firstname.lastname@example.org. A copy of the report can be accessed here.