The Government’s response to the consultation “Solving disputes in the county courts” is still awaited. One of the key features of the consultation is whether there should be an extension of the online portal scheme for low value road traffic accident claims both vertically (in value) and horizontally (to cover other types of cases). Views expressed by various contributors are now beginning to be made public, including by the Civil Justice Council (CJC) and Jackson LJ.
The CJC supports a return to the principles emulated by Lord Woolf and puts forward some convincing counter-arguments, in particular with regard to the proposal for mandatory pre-action directions. The CJC calls for the focus to be put back on courts resolving disputes. Whilst mediation has its place, it argues that it is only when in conjunction with judicial case management: mediation works by being a part of the litigation system, not separate to it. A better alternative would be to simplify existing procedures and introduce effective measures to reduce costs.
Jackson LJ also urges caution and says it is premature to increase the upper limit of the scheme. He does, however, support of the extension to EL and PL cases, subject to simplifying the supporting documents (practice direction and protocol) into a single procedural document. Jackson LJ says the inherent complexities of clinical negligence cases (even at low value) make the scheme inappropriate. Whilst we agree with such an observation, we would also highlight the greater complexity with EL and PL claims (and in particular, surrounding capture of evidence), which will need to be addressed carefully.
Overall, Jackson LJ supports a much firmer line on delay and default, to include a clampdown on the high cost of experts and of drafting witness statements. He repeats a call for fixed recoverable costs in the fast track, to include a mechanism for an annual review of the figures. All of these ideas appear to have been accepted by Government.
By way of reminder, the July edition of Liability Brief was dedicated to the consultation response.