On 15 September, the Ministry of Justice (MoJ) opened its ‘Transforming our courts and tribunals’ consultation, which aims to put into effect many of the proposals put forward by Lord Justice Briggs in his Civil Courts Structure Review. It gives some useful insight into what the MoJ has in store for the civil courts system in the near future.
This consultation is released concurrently with a joint statement of the lord chancellor, lord chief justice and senior president of the tribunals on the future of HMCTS.
The consultation’s overall purpose is evidently to provide a more expeditious, streamlined and frugal justice system. Whilst introduced primarily for the purpose of consulting on the digital assistance processes following implementation of the Government Digital Strategy and court reforms, the consultation documents give some indication as to which of Briggs’ proposals are likely to be implemented first.
Clearly, the content of this consultation from a civil litigation perspective is a fait accompli; if one wants to implement computerised processes, digital assistance will be required for the digitally excluded.
Chapter 3, however, includes some interesting titbits as to how the MoJ has greeted Briggs’ final report and the report’s implementation timetable.
What seems clear is that Briggs’ endorsement of a new judicial process, new rules and a specialised rules committee relating to the creation of an online court and an accompanying, simplified procedural code has been welcomed.
There is also the significant addition of ‘innovative technology and specialist case officers to progress routine cases through the system’. Their duties are not yet defined, but Briggs anticipates these case officers will be legally qualified lawyers. Judicial time, conversely, is to be reserved ‘for the most complex cases’, presumably based on actual complexity as opposed to value.
In line with Briggs’ proposals and the wide-scale shift towards greater use of technology, there will be more virtual hearings, held over the telephone or by video conference. Again, traditional hearings are envisaged for the most complex and difficult cases.
However, beyond the reference to the report, the consultation contains very little practical information as the how the online court is to operate. The reference to Briggs and elements of his report suggest, at the very least, that his proposals will be implemented substantially unaltered.
One element of Briggs’ review that has not generally considered in any great detail by legal commentators is his proposals for ADR.
Briggs identified a unique programme of early neutral evaluation (ENE) of small claims track cases by district judges in the Hampshire, Dorset, Wiltshire and Romford County Court hearing centres. In essence, these ‘conciliation hearings’ have allowed parties to attend and consider settlement of their cases in a more judicially proactive environment. Judges provide informal indications of determinations, highlight deficiencies and identify more appropriate case-specific directions for progression to trial to encourage early resolution. It is suggested that over 75 per cent of all small claims are disposed of by either strike out (for non-attendance) or resolution at or after the ENE session.
These judicially-driven assessments are not new, however. For those acting in the First-tier Tribunal (Property Chamber), extensively operated mediation / ENE appointments are provided as a matter of course following case management hearings and disclosure. The hard reality of attendance at court and the cathartic nature of the presentation of limited evidence by the parties themselves often result in considerable (possibly forced) re-evaluation and acceptance of an opposition’s meritorious arguments.
Briggs discussed a previous out-of-hours mediation regime – discontinued some time ago – at county court centres operated by independent mediators and funded by the National Mediation Helpline. I share Briggs’ view that it is not enough to provide a mere service for small claims while neglecting higher value cases in the county or High Court. Upon that basis, Briggs recommends reinstatement / replacement of these defunct mediation services for fast and multi-track claims.
These proposals are not actually discussed in this consultation. Instead, there will be an ‘increase[d] signposting to mediation and alternative dispute resolution services’. Whilst there may be things going on behind the scenes, I cannot help but feel that this is not enough and hope that there is more to come.
Probably the most controversial issue in his final report, at least from a solicitor’s perspective, is Briggs’ proposals to extend fixed recoverable costs.
This, of course, is not a new phenomenon. On 28 January, Lord Justice Jackson gave the 2016 IPA Annual Lecture entitled ‘Fixed Costs: The Time Has Come’. In it, he stated: ‘We now have enough experience (including that gained from costs budgeting and the existing fixed costs regimes) to devise a coherent scheme of fixed costs for the whole of the fast track and for the lower reaches of the multi-track. The time for doing that has now come.’
Building on measures introduced for low value personal injury claims, the proposal includes an ominous and sweeping statement: ‘We are keen to extend the fixed recoverable costs regime to as many civil cases as possible.’ The senior judiciary are working on proposals, and a full consultation will follow.
Needless to say, practitioners will want to consider that consultation in full and respond accordingly to it.
The centralisation of enforcement and issuing processes discussed by Briggs has yet to be considered for implementation. Instead, the consultation proposes to give the High Court powers to make attachment of earnings orders. One hopes that this is not the end of more centralised enforcement methods.
The implementation of at least some of Briggs’ recommendations is going ahead, and sooner rather than later, it would seem. The headline story here is the implementation of fixed recoverable costs across civil litigation. Publication of the revelations in this issue-specific consultation is likely to stir up heavy debate and I think it’s inevitable that further consultations will follow on the wider Briggs proposals. Keep an eye on the MoJ’s website for those future consultations that will, no doubt, provide more insight.