Lord Justice Briggs - who will be speaking at our autumn conference on 29 September - has published the long-awaited final report on the Civil Courts Structure Review, making a series of recommendations intended to inform HMCTS’ current court modernisation programme. At 300 pages long, Gareth Raisbeck digests the details in the report, so you don’t have to …
Beyond the headline issues, the obiter may have been largely skimmed, as the report, at nearly 300 pages with appendages, is a tome. However, Briggs’ own writing style makes the report somewhat surprisingly light reading, well worth considering in detail.
Steps to expedite Court of Appeal cases overtook Briggs in his review and, therefore, we will not be in a position to assess whether its workload will approach manageable levels for some years yet. On that basis, Briggs concentrated on the other determined weaknesses of the civil courts system, assessing suitable solutions:
- Lack of justice
The introduction of an online ‘solutions’ court and expansion of fixed recoverable costs in both the county and online courts. The online court could be extended from money claims up to £25k.
The removal of ‘the tyranny of the paper file’ and the courts’ emancipation from it as part of HMCTS’ digitisation strategy. Briggs has operated under the assumption that ‘probably, but not certainly, those courts will be essentially paperless, and supported at every stage by up-to-date IT’.
- Underfunding outside London
Increased funding and numbers of circuit judges for the regional civil courts.
The centralisation and unification of the process for all methods of standard judgment enforcement in the county court, through a single ‘portal’. Complicated enforcement to remain in the High Court or other specialist courts.
Online ‘solutions’ court
Online dispute resolution and the introduction of a pseudo-online court has been a distinct possibility, if not an inevitability, for some time. Since February 2015 at least and the CJC Online Dispute Resolution Advisory Group’s report (‘Online Dispute Resolution For Low Value Civil Claims’), solicitors have become accustomed, at least anecdotally, to the concept.
One overriding criticism of the current system that permeates both reports is Briggs’ distain for paper. This is dealt with at length in the interim report at chapter 2. Digitisation of the court’s ailing paper system, coupled with a primarily, or wholly, online court, would have two results:
- a decrease in court costs (there being an ability to reduce judicial time and centralise operations)
- the simplification of procedures and non-traditional trials.
Briggs suggests an initial £10k limit for his compulsory online court, and a long-view potential limit of £25k thereafter. As pointed out by a commenter on the Law Gazette website: ‘So there we go. If adopted wholesale, Small Track Costs for all claims up to £25k.’ This will inevitably and drastically reduce the lower value workload of the county court and make small and fast track trials a rarity. That said, the jurisdiction of the online court will not stretch to certain specific types of claim (eg possession proceedings, fast- and multi-track PI claims, professional negligence etc), which will proceed on the normal course.
In reality, of course, the ability to transfer cases to the county court or High Court for determination on the grounds of complexity or public importance is retained (along with their respective track-appropriate rules, no doubt). However, I question how often such a request will be heeded or what criteria will apply when assessing such an application. An online court rules committee will need to be appointed to assess such matters.
The online court will involve a significant technological shift to a tablet- and smartphone-proof platform. Similar to the new universal credit system that is replacing jobseeker’s allowance, this computerised system will inevitably cause some concern for non-computer users. However, Briggs emphasises the need for ‘assisted digital’ resources for non-computer users and continued legal education. I do question whether there will ever be sufficient legal education to satisfy the needs of prospective litigants.
Of course, Rupert Jackson’s Review of Civil Litigation Costs identified that ‘The small claims track is virtually a no-costs regime’, and Briggs identifies with this principle, advocating that the online court will operate in a similar vein.
Some have already identified that this is not a solution to a current and pressing issue in the county court: the significant imbalance between a litigant in person and a legally represented party. Briggs’ solution to this problem appears to be greater availability of unbundled legal services from solicitors and direct access barristers, and for certain modest costs be recoverable in appropriate cases (eg for cross-examination).
Determination of all disputes will be by traditional trial, a video or telephone hearing, or on the documents (or by a combination of those), as determined by the case officer. One imagines, in the spirit of saving costs, that the number of paper determinations will vastly increase. However, should the chosen mode of trial be undesirable, one can apply to the district judge for a redetermination.
The appeals procedure will be similar to that in the small claims track, with the route of appeal being to a circuit judge in the county court in the first instance, and thereafter to the Court of Appeal. Appeals from the online court will now lie on questions of both fact and law: see para 6.106.
Briggs advocates the use of newly appointed case officers, perhaps more appropriately referred to as ‘case lawyers’ (para 7.30) who will have sufficient legal qualifications and experience to undertake a volume of box work from district judges. Additionally, they will take responsibility for certain procedural case management steps from the judiciary, subject to judicial redetermination being unfettered.
Future of the courts
The (somewhat fanciful) concept of a wholly reconstituted Unified Court, replacing the county court and High Court in their entirety, has been disregarded (see paras 8.4–8.24).
For the junior lawyer, it seems almost incomprehensible that proceedings in the county court and the High Court are capable (and have been for some time) of being issued in many entirely different ways. As Briggs notes, proceedings in the county court are either issued electronically (in Northampton), or in the traditional paper method (by Salford) before being transferred to the local county court upon either defence or for the purposes of enforcement of judgment. The regional hearing centres of the county court have long since lost their ability to issue most proceedings at regional hearing centres, proceedings being issued centrally instead. Briggs holds that the same is not yet true for the High Court, with claims issued in either the principal registry or a specific, geographically-identified district registry.
Indeed, Briggs identifies that: ‘The creation of a mandatory Portal for the issue of all civil claims (regardless whether extended to Family and Tribunal claims as well) could easily achieve for the High Court the same disconnection between issue and geographical location that has already been achieved for the County Court’ (para 8.10).
On this basis, it appears that proceedings will be issued centrally, regardless of the destination of those proceedings. With its significant experience in centralisation, it would appear unconscionable that the largely successful Salford Business Centre would not be enlarged or carbon-copied for reasons of reducing administrative chaos and costs. While the divisions of the High Court bring an element of complexity to the issuance of county court proceedings, one imagines that this can be overcome relatively easily through education and properly trained administrative staff.
With the introduction of the single Issuing Portal, Briggs sees the district registry system as redundant. In essence, if the creation of the single county court was a by-product of the Salford Business Centre / Northampton issuing method, the Issuing Portal will create a single omnipresent High Court without any regional locale. On that basis, the entire concept of a regional district registry will be rendered obsolete.
The Central London County Court (CLCC) has been given district registry status, permitting it to hear High Court cases. I am certainly somewhat disappointed with this development. The CLCC has, in my experience, been the subject of significant negative feedback from the profession owing to delay. We wait to see whether this possible increase in workload will impact negatively upon the administration of county court cases.
For someone who has learned from a recruiter that solicitors operating in the regions are not as highly regarded as those in the capital, it was incredibly pleasing to note that Briggs adopts the principle that no case is too big to be resolved in the regions. Briggs highlights a useful precedent of the Chancery Division in which High Court judges (who have frequently recently retired from full-time sitting) travel on circuit to hear cases in a return to a form of assizes. This will, in Briggs’ view, allow the regional hearing centres to retain cases that would otherwise descend to the Royal Courts of Justice, thereby obtaining a dual benefit in reducing the workload there.
Furthermore, perhaps pre-empting negative reactions to a perceived increase in work in the regions, Briggs advocates increased numbers and availability of circuit judges to undertake county court work.
Additionally, with regard to the regions retaining high value or significant cases, Briggs adopts the position that those cases should be managed in the regions, and identifies the improvement of video hearing technology as a key advancement. I certainly have never been involved in a video hearing, but see no reason why properly prepared parties could not benefit from its existence – and certainly in preference to disconnected and artificial telephone hearings.
Transfers and allocation
As expected, the county court limits are to be removed and the threshold value for a High Court case is to be set immediately at £250k, with a view to an ultimate increase to £500k. Such an increase will do away with differences between PI jurisdiction and that of other cases, and bring some uniformity.
In line with Briggs’ previously mentioned belief in the principle that no case is too big to be resolved in the regions, specialist cases should, in his view, be transferred not to London but to regional centres. In order to provide some form of deterrent or blocking mechanism, Briggs suggests that any case transferred to London may need the approval of the London-based judiciary.
Some matters concerning the boundaries of the civil courts and other tribunals are probably more niche. For example, Inheritance and Trusts of Land and Appointment of Trustees Act 1996 claims will have a shared jurisdiction with the Chancery Division and the county court. One significant clarification of note, however, concerns the respective jurisdictions of the county court and the First-Tier Tribunal (Property Chamber). The recommendations of the Civil Justice Council’s Report of May 2016 are to be enacted.
In the spirit of centralisation and simplification, Briggs advocates for a single enforcement court which will operate with a single administrative Common Portal for all enforcement. While solicitors may feel that the county court has already more than enough work to create unreasonable delays in certain circumstances, Briggs envisages that the county court should be the destination for all basic enforcement. Specialist enforcement (eg international judgments) will be retained by the High Court.
Obviously, with the centralisation of enforcement in the county court, there will be ramifications for enforcement agents (HCEOs and bailiffs). On that basis, Briggs recommends a separate and in-depth review of this specific area.
Probably the greatest concerns will come from those foreseeing a reduction in instructions, both in solicitors’ firms and at the junior bar.
The introduction of the online court will inevitably result in a significant reduction in county court trials. I foresee the bar being more significantly affected than solicitors’ firms – in particular, junior (or unregistered) barristers who cut their teeth on small claim and fast-track debt recovery actions, which are now more unlikely to proceed to full trial in future.
On a more positive note, I suspect both individuals and businesses will continue to instruct solicitors regardless. One Law Gazette website commenter agreed: ‘Clients need lawyers. That will not change regardless of whether the online court is established or not. I’m not too concerned.’
Despite Briggs’ honest intention of a lawyer-less legal domain, I am reminded of Robin Hollington QC’s judgment in Okin v London Borough of Lewisham  EWHC 864 (Ch), in which he determined that ad hoc representation by direct access counsel was not ‘a complete substitute for being represented by experienced solicitors’. I question whether ad hoc direct access, unbundled legal services and experienced online court case officers will be such a complete substitute for actual representation and professional case-specific advice to give litigants the skills to properly present a case before the online court.
Moreover, in light of Sequence Properties Ltd v Patel (unreported, 2016), the question remains whether many solicitors will even want to take the inherent risk of pursuing unbundled instructions. That remains to be seen.
Another question concerns the Issuing Portal. The days of appearing before the Master on the cusp of the expiry of the limitation period will end. Of course, a claim is deemed issued on the date it is received by the court office. As we know, the postal service cannot be relied upon and, in these heady post-Denton days, a greater time buffer will be needed if commencing a claim by any method other than strictly electronically. Perhaps the e-filing of documents and payment of fees for all claims will remove such concerns. Surely, nothing is ever that simple…
On the positive side, the Enforcement Portal is surely a move which we can all applaud. Providing sufficient funding is ringfenced, a suitable computerised administrative process that encompasses all standard enforcement methods is long overdue and will, I believe, reduce time and administration pressures in the county courts and law firms. The further review on enforcement agents will, no doubt, be a move in the right direction in a similar vein.
On the whole, the proposals are optimistic. While questions remain, we will still have jobs come implementation.
Lord Justice Briggs will be delivering the keynote speech at our autumn conference at Chancery Lane on 29 September. Section members are entitled to attend for free.