Lord Justice Briggs described the purpose of his recent Civil Courts Structure Review as 'to identify how best by structural change to preserve the strengths, address the weaknesses, maximise the opportunities and manage the threats of, and facing, the civil courts' (1.3). A tall order indeed, and what follows is necessarily a quick canter through the Review and its recommendations.
The Review concludes that the civil courts of England and Wales continue to provide a world-class justice service to those with civil disputes; but identifies and seeks to address five main areas of weakness.
Access to justice
The most significant concern is the lack of adequate access to justice for ordinary individuals and small businesses. No arguments there. However, this is ascribed to a "combination of the excessive costs expenditure and costs risk of civil litigation about moderate sums, and the lawyerish culture and procedure of the civil courts, which makes litigation without lawyers impracticable" (12.4). There is no mention of the impact of vastly increased court fees on those individuals and small businesses.
Briggs LJ suggests that access to justice would be improved by the introduction of an Online Court (OC), coupled with an extension in the regime for fixed recoverable costs, remedies he describes as “complementary” (12.5). The fixed recoverable costs regime was discussed in our March/April Insights column, and falls outside the Review.
The OC would operate under its own bespoke rules, and its costs regime would be modelled on the small claims track. It would be designed for litigants to use without legal assistance, but it would not altogether preclude the use of lawyers. Briggs LJ suggests using lawyers to provide “early, bespoke, affordable advice to would-be litigants” on the merits of a claim or defence (12.5.7), whether through solicitors providing unbundled services, or direct access barristers. There is also discussion of limited fixed recoverable costs in respect of legal representation at trials. However, the intention here is clearly to reduce the cost of litigation and minimise lawyer involvement.
The procedural simplicity of the OC, as currently suggested, also reflects this.
- Stage one: an automated triage stage, designed to help litigants in person set out their claim and upload their key documents and evidence.
- Stage two: the conciliation stage, dealt with by a “case officer”. This stage should encompass ODR, both telephone and face to face mediation, and judicial early neutral evaluation.
Case officers are a new breed of court service officers. They should all have legal qualifications and experience. As well as dealing with this stage, case officers will be assigned work (mainly box work) currently done by judges.
- Stage three: the determination stage, where a judge determines the case, whether by trial in person, by video or telephone, or on the documents.
The OC would resolve disputes up to £25,000 in value. Users would be informed that litigation should be used as a last resort (12.5.11). Its introduction should be approached in stages, either by using an initial ceiling of £10,000, or by launching the service of the court by reference to specific case types (12.5.9). At the outset, the OC is also likely to be restricted to money claims only, although this may change as the court is tried and tested.
Briggs LJ recognises that this OC is a big change and will require assisted digital support for the technologically challenged or impoverished, and improved legal education for the public. The April 2020 deadline is recognised to be “a real challenge” (6.46). An example of judicial understatement, or a triumph of optimism over experience?
The Review also criticises ongoing inefficiencies arising from the continuing “tyranny of paper”, exacerbated by the obsolete and inadequate IT facilities in most civil courts. Again, it is hard to disagree.
Briggs LJ has “very considerable confidence” that the digitisation of all the processes of the civil courts “will succeed, although of course not without teething troubles."
Indeed, his working assumption is that, “probably, but not certainly, those courts will be essentially paperless, and supported at every stage by up-to-date IT by the end of the Reform Programme, provided that the funding for it continues to be available” (emphasis added) (12.9). There is no discussion of what will happen should the digitisation programme be delayed or unsuccessful, or funding be withdrawn. A further example of optimism triumphing over experience?
Delays in the Court of Appeal
The third weakness identified in the Review is the unacceptable delays in the Court of Appeal, caused by its excessive workload.
The now largely implemented reforms to the Court of Appeal’s practice and procedure are deemed to provide a platform on which its chronic overload and consequential delays may be addressed (may, indeed). It will however take several years to reduce the current backlog to an acceptable level. Even that will only happen if the process is meticulously managed (no word as to who by). It will also require the continued discharge by the court’s judges of an exceptionally heavy workload "without undue distraction in the form of leadership and administrative responsibilities" (12.10; and see previous comment).
In his interim report, Briggs LJ discussed the possibility of having a unified civil court. The Review recommends retaining the division between the High Court and the County Court, subject to the continued improvement of procedures for transfer of inappropriately issued cases. Briggs LJ also recommends removing the thresholds attached to probate, trusts and estates work in the County Court, and increasing the current £100,000 (£50,000 for personal injury claims) threshold for High Court cases to £250,000 for all claims, with a view to raising it to £500,000 in the future. This should alleviate the demands on the High Court and, potentially, if indirectly, on the Court of Appeal.
The Review criticises a serious under-investment in provision for civil justice outside London.
More civil judges are required on the circuit and civil work should make up at least 40% of every circuit judge's judicial practice. Effect should be given to the principle that no case is too big to be tried in the regions. Regional category A cases should be added to the London lists of High Court judges and a London judge should hear it in the relevant regional centre as an allocation to a specific case (rather than as part of a circuit visit).
Briggs LJ also recommends that there should be teams of three senior circuit judges in each regional centre, and steps should be taken to preserve and strengthen specialist work in Bristol, Liverpool and Newcastle.
Briggs LJ recommends addressing the shortcomings in the quality of the enforcement of civil judgments and orders by unifying those processes within a single court, namely the County Court. In his view, this would more than justify the work on the primary legislation and procedure rules necessary to bring about this "entirely uncontentious objective" (12.12).
A second best solution (if Parliament and the Ministry of Justice are perhaps distracted by other things) is to achieve as much of that as possible by the centralisation, rationalisation, harmonisation and digitisation of the processes of enforcement.
It will be interesting to see how (and when) the Government chooses to respond to the Review. Place your bets now!
This article was published in Commercial Litigation Journal in October 2016.