Lord Justice Briggs's final report in his review of the future of the civil courts structure was published last week. Key recommendations relevant to commercial parties include:
- establishing an Online Court, initially for money claims up to £25,000
- a substantial increase in the minimum claim value threshold for commencing claims in the High Court – initially to £250,000 and subsequently to £500,000
- transferring some of judges' more routine and non-contentious work to case officers, under judicial training and supervision
- there should not be a move to a unified civil court (ie combining the High Court and County Court) but the time has come for a debate about the future of the High Court Divisions (beyond the scope of this review)
- the County Court should become the single default court for the enforcement of judgments and orders of all the civil courts, with enforcement procedures to be unified and digitised
The review was commissioned by the Lord Chief Justice and the Master of the Rolls in July 2015. It is intimately linked with the HMCTS (Her Majesty's Courts and Tribunals Service) Reform Programme, which was launched in March 2015 and focuses on three main areas: using IT to improve the issue, handling, management and resolution of cases; reducing reliance on buildings and rationalising the court estate; and allocating aspects of the work currently done by judges to court officials under judicial supervision.
In relation to the use of IT, a key assumption underlying both the Reform Programme and the Civil Courts Structure Review is that it will be possible to move to a completely digital (ie as far as possible paperless) court structure. In his final report, Briggs LJ observes that he now regards it as "practically inevitable" that the Reform Programme will include the creation of a single online Portal for the issue and conduct of all court proceedings (at least within the boundaries of Civil, Family and Tribunals).
Briggs LJ's interim report on his review was published in January 2016 setting out provisional recommendations (see the report here and our summary here), following which he engaged in further consultation with the legal profession and other stakeholders. The final report was published on 27 July 2016.
Notably, Briggs LJ observes in the final report that the responses he obtained in the further rounds of consultation have remedied what he had identified as an inadequate period for consultation prior to the interim report. He also confirms that, for the most part, the subsequent consultation reinforced his provisional analysis of the civil courts structure's strengths, weaknesses, opportunities and threats, which has informed his recommendations.
Key final recommendations
Amongst the various recommendations and proposals addressed (listed together in Chapter 12 of the report), key conclusions relevant to commercial parties include the following.
One of the key findings in the interim report was that there is a clear and pressing need for the establishment of an Online Court, to give effective access to justice in more straightforward and modest value disputes without disproportionate costs and delay.
The final report notes Briggs LJ's understanding that the Ministry of Justice has already agreed to implement the concept of the Online Court. Legislation is being prepared and the design and development of the system is now the subject of a specific work-project within the Reform Programme (although it is yet to be decided whether it should be separate from the County Court, as recommended by Briggs LJ). The proposed timing for the launch of the system is April 2020, although Briggs LJ acknowledges that this will represent "a real challenge".
It is proposed that cases in the Online Court would progress through three main stages: (i) a largely automated, inter-active online triage process to enable users to articulate their case and to identify documentary evidence; (ii) conciliation and case management by case officers; (iii) resolution by judges (either on the documents, by face-to-face trial or by video or telephone hearing, as considered appropriate). In response to concerns expressed in the consultation about ensuring accessibility by individuals who are challenged by IT, the final report stresses the need for the system to include assistance for such individuals and also concludes that the new court be governed by its own "user-friendly" set of dedicated rules, rather than the Civil Procedure Rules.
The recommended jurisdiction of the Online Court remains as originally proposed, being money claims up to the value of £25,000 (with substantial exceptions including most personal injury and professional negligence claims). However, it is suggested that an initial ceiling of £10,000 could be adopted as part of a "soft launch" of the new court. In any event, the report clearly anticipates that the Online Court will eventually become the compulsory forum for resolving cases within its jurisdiction, although always with provision for complex and important cases to be transferred upwards to higher courts. Appeals from case determinations in the Online Court will lie initially to the Circuit Judge in the County Court and then to the Court of Appeal.
In Briggs LJ's view, the new court, if successful, "may pave the way for fundamental changes in the conduct of civil litigation over much wider ground than is currently contemplated by its first stage ambition".
County Court and High Court thresholds
In line with the report's conclusion that a substantial proportion of cases currently being commenced in the High Court do not actually need to be heard there, Briggs LJ recommends that (i) all remaining financial limits on the jurisdiction of the County Court should be removed and (ii) the minimum claim value threshold for commencing claims in the High Court be increased immediately to £250,000, with a view to a second increase to £500,000 (applicable to all types of claim, with no lower limit for personal injury claims as at present).
The final report confirms Briggs LJ's provisional recommendation (echoing the similar proposal within the Reform Programme) that some of the more routine and non-contentious work currently carried out by judges should be transferred to case officers, being a senior body of court officials who will receive judicial training and supervision. This is likely to include matters that are not actively disputed, and some routine case management of less complex cases, but not decisions affecting substantive rights and duties.
The final report stresses that judicial "supervision" in this regard should involve not merely a reporting line but a relationship of close physical proximity and regular contact between the case officer and the judge. It also accepts (taking a more strict view than the interim report) that case officers should all have legal qualifications and experience.
The report confirms that there should be an unfettered right for a party to have a case officer’s decision reconsidered by a judge.
Proposals for a unified civil court
The interim report considered the question of whether there should be a move to a unified civil court (ie combining at least the High Court and County Court) but reached only the conclusion that any such unification should not be pursued ahead of completion of the Reform Programme.
In the final report, Briggs LJ notes that a clear benefit of such unification would be the more efficient allocation of cases between the High Court and County Court (with the court, rather than the parties, determining the allocation). However, the report reaches the conclusion that, on balance, this advantage is insufficient to justify the creation of a unified court and that the benefits of improved allocation can be achieved substantially as well by other means (including the proposed changes in claim value thresholds, discussed above).
The future of the High Court divisions
The interim report had suggested that the review would consider possible changes to the current divisional structure of the High Court and in particular the "sensitive subject" of whether there should be a merger of the Rolls Building courts (ie Chancery, the Commercial Court and the Technology and Construction Court). However, the final report does not make any specific recommendations in this regard, due to the fact that the issue has implications well beyond the civil courts.
Nonetheless, Briggs LJ does express the view that "the time has come for a decision about the future of the Divisions" and recommends that the question be dealt with as a major part of a wider debate by the Judicial Executive Board. In doing so, he notes that no change should risk undermining the international reputation of the Commercial Court or the other specialist Courts in the Rolls Building.
The report confirms Briggs LJ's provisional recommendation that various identified shortcomings in the quality of the enforcement of civil orders and judgments would be best addressed by a unification of those processes within a single court, which should be the County Court (with provision for transfer of certain enforcement issues to the High Court where necessary and special provision for the enforcement of arbitration awards).
In his view, this is an "entirely uncontentious objective". However, if the necessary legislative amendments to effect such unification cannot be given sufficient Parliamentary and Ministry of Justice attention, a 'second best solution' would be to achieve as much of that as is possible by the centralization, rationalization, harmonization and digitization of the processes of enforcement in the separate courts.