It has been a very busy year for the Civil Justice Council (CJC), with a number of reports due before the end of 2018. As ever, we are extremely grateful to our members for their time and the expertise they bring. Here are some updates on our main projects.
Alternative dispute resolution
Work on alternative dispute resolution (ADR) was established in early 2016. The objective was to review existing forms of mediation and ADR, to consider approaches to encourage the use of mediation and to assess reforms. Despite being a large and fast-moving topic, William Wood QC and his team have now published an impressive report which proposes a number of reforms to the system and tackles a number of policy questions, including whether or not mediation should be compulsory.
The recommendations include:
- A judicial-ADR liaison committee.
- Increasing public awareness of ADR.
- Liaison between the Citizens Advice Bureau and voluntary sector with the ADR community.
- Peer mediation in schools.
- ADR to be included in law faculty training.
- Increased professional training.
- A new website to act as a single umbrella source for information about ADR.
Work has already commenced on the creation of the judicial-ADR liaison committee, which will play an important oversight role in the area. The committee will report to the Master of the Rolls as the Head of Civil Justice in England and Wales.
A great deal of work has gone into the report, which has been praised by the Master of the Rolls and the rest of the CJC. We look forward to seeing how it is received.
Boundary disputes
Boundary disputes constitutes another piece of work that started in 2016. This involves a report and guidance with the intention of improving the resolution of disputes between individuals concerning the boundaries to their land. It has been a joint effort between members of the CJC and the Royal Institution of Chartered Surveyors, the Property Litigation Association and mediators. We hope to publish these recommendations on our website as well as circulating them to advice agencies and interested stakeholders.
Property disputes
A working group on property disputes was established by the CJC in 2015 to consider whether access to justice in property disputes could be improved by the deployment of judges to sit concurrently in courts and tribunals. Following a pilot, Siobhan McGrath, Property Chamber President, has now published a proposal and recommendations to amend the Civil Procedure Rules and the First-tier Tribunal Procedure (Property Chamber) to reflect this. This report sets out justifications for the proposal (such as cost, complexity and the need for specialist judges), the types of cases suitable for the proposals and the practical implications. It can be found on the CJC website.
Clinical negligence
Work on clinical negligence follows terms of reference agreed in early 2018 by the Department of Health and Social Care and the Ministry of Justice (MoJ): to consider and recommend an improved process for clinical negligence claims, where the claim has a value of £25,000 or less, and to draw up a structure and figures for fixed recoverable costs for such cases. The work also includes consideration of issues of patient safety and expert reports. Led by Andrew Parker and David Marshall, the working group has been divided into a core group and a separate wider stakeholder group to help focus the issues. Progress has been made, with the hope of producing an improved process and fixed recoverable costs through mediation between claimant and defendant representatives. A final report should follow in early 2019.
Low value personal injury claims
In July 2017, concerned by the number of false holiday sickness claims, the MoJ requested that the CJC consider the rules around how low value personal injury could be handled to reduce the number of claims lacking merit.
Nicola Critchley volunteered to lead on the work, which was divided into two parts. The first was to consider holiday sickness claims. This report was finalised in March 2018, following collaboration with the Civil Procedure Rules Committee, and a new pre-action protocol was introduced on 7 May 2018 in time for the 2018 summer holiday season.
The working group is close to completing the second aspect of its work, which focuses on what further reforms could be introduced to low value (under £25,000) personal injury claims more generally. We hope to publish the report in early 2019.
Anti-social behaviour injunctions
On 23 March 2015, Part 1 of the Anti- social Behaviour Crime and Policing Act 2014 came into force and introduced a new power to impose an injunction to prohibit anti-social behaviour. This Act repealed and replaced earlier legislation and introduced significant changes to the court’s powers in civil proceedings, with a shift in work from the criminal to the civil courts.
Earlier this year, the CJC decided to investigate concerns about the way that anti-social behaviour injunctions (ASBIs) are being applied for and used in the courts, the limited powers afforded to the court, the lack of options on breach of the order and the lack of involvement of third parties in the process. A working group has now been established, under the leadership of HHJ Barry Cotter, to consider these issues with the aim of producing a report and recommendations.
Vulnerable witnesses
The Interim Report of the Inquiry on Child Sexual Abuse, published earlier this year, recommended that the MoJ provide in primary legislation that victims and survivors of child sexual abuse in civil court cases are afforded the same protections as vulnerable witnesses in criminal court cases. The MoJ has since asked the CJC to consider the present position and make recommendations.
Access to justice for litigants in person
Finally, the seventh CJC National Forum on Access to Justice for Litigants in Person, took place on 7 December 2018. Led by Mr Justice Robin Knowles, the event proved even larger than in previous years, a sure sign of its success. Over 200 representatives from the judiciary, MoJ, courts, academia, the advice sector, practitioners and more attended. As in previous years, the aims of the event were to encourage connections, update and share new learning, identify opportunities for improvements and to share a vision for the longer term. A summary of the event will be made available on the CJC’s website.
