Beverley Barton, an editor in the Practical Law Dispute Resolution team, recently had the opportunity to interview Sir Vivian Ramsey, the former head of the TCC. In the second part of the interview, Sir Vivian gives some perspectives on recent legal developments. In Part 1, Sir Vivian told us about his background and early career. In Part 3, he will consider what the future might hold for civil litigation in England and Wales.
You were the judge responsible for implementation of the Jackson reforms. Two years on from implementation, what is your assessment of how they are working? Have they achieved what was intended? What are the big successes?
I have always said that it will be a number of years before we can see whether the aim of the Jackson reforms – access to justice at proportionate cost – has actually been achieved. I think that, obviously, the initial successes were the abolition of the recoverability of success fees and of ATE insurance premiums (those had been introduced with the best of motives to try to replace waning legal aid, but the big concern was that they then made the costs to be borne by the paying party disproportionate). That was the initial success.
Change to the rules has probably been another success. Although the Mitchell decision was extremely unpopular, the truth was that the procedure in a lot of cases fell apart too easily when somebody did not comply with one of the court orders. As I always say, to the outsider, if you asked if lawyers have to comply with court rules, practice directions and judges’ orders, there would only be one answer, but the legal profession seemed to answer it differently and say that they didn’t necessarily have to comply.
I think that the effect of Mitchell, with some readjustment in Denton, has changed the whole approach to litigation.
Of the Denton cases, Decadent Vapours was a particularly interesting one, as relief was granted in a case where there had been breach of an unless order for payment of a court fee. Might it be said that that potentially watered down the message that litigators must comply with procedural rules, practice directions and court orders?
I think that the Denton cases realised that, in a sense, the way in which the courts were applying Mitchell was to say that, if there was any breach for which there was no good reason, one immediately took action to strike out, or some other draconian step.
I think Decadent Vapours was, to some extent, to emphasise that the court has to take account of the impact on the litigation as one of the important factors. That indicated, not that it wasn’t a very serious breach but, when you analysed the effect on the court procedure, that it was not as serious as the other cases. Like all judgments, one has to look at the underlying facts and consider whether, in that particular case, one can grant relief from sanctions or not.
My perception is that it will take a few more years until it is as successful as it should be. It is a new discipline, which both the professions and the judiciary are finding it difficult to come to terms with.
Gradually, we found in the TCC that, after years of piloting and then implementation of the full rules, parties started to take a much more sensible approach to costs budgeting, very often agreeing most of each other’s costs budgets and leaving one or two line items to be resolved. I think it is a longer picture until costs budgeting is properly implemented.
Recognising that the reforms are still working through and it is perhaps still too early to judge whether they have achieved their aims, based on where we are at the moment, is there anything that you already feel requires further reform?
There are still some proposals which were Jackson recommendations which have not been implemented. One is fixed costs on all fast track cases, not just personal injury. That, quite frankly, is one that should be introduced as soon as possible. Fixed costs on low value cases is a way of giving some degree of certainty as to the costs of those proceedings, which is necessary for the type of party who has those claims.
It is necessary, I think, to revisit the Regulations on damages-based agreements (DBAs) because the underlying intention of the Jackson reforms was to give parties a broad ability to fund litigation in the way in which they wanted. Particularly in commercial cases, one should give the parties the opportunity to agree hybrid DBAs: that is being able to agree that they take a smaller percentage but also get paid at a lower hourly rate for the work or, alternatively, if they lose, they still get some costs recovery at a low rate even if they don’t then get the percentage recovery. In other words, we have a freedom of contract generally in England and Wales, and that freedom to contract includes freedom on how to finance your litigation. Provided that there are safeguards for people less able to understand the complexities of it, really there should be freedom to agree what you would like to agree.
Certainly, the current government was in favour of at least reviewing the position. But I think that one will have to see what happens after the election as, certainly, short-term, there will be other priorities.
You have recently left the English High Court and have joined the Singapore International Commercial Court. With that perspective, looking back, what do you see as the key strengths of the English justice system?
Well, I think that very high advocacy skills is one of the major parts of it: both on the criminal and the civil side.
I also think (and now can say, as a retired judge), that there is a very high level of integrity and expertise amongst the judiciary. When you travel around the world, you realise the strength of the system by which judges are appointed in England: by and large senior members of the professions compared to judges in, say, Europe who are often career judges from a younger age. I think that because of this you get a completely different approach to the judiciary here which is much more commercial and much more intellectually rigorous than in certain other countries.
A recent report surveyed how members of the judiciary feel currently, which was not entirely positive. There has also been considerable concern about the recent increase in court fees, notably the huge increase in the cost of issuing proceedings. These are just a couple of examples of current civil justice issues. What do you consider to be the main challenges facing English civil justice and court users?
So far as the courts are concerned, I think one is finding that financial constraints on the courts are biting in a way which is causing, first of all, courts to be less efficient in terms of office and paperwork. Secondly, it means they are not providing the support that the judiciary, and indeed the general public, need and which should match the expertise within the civil justice system in this country.
Part of that, one would have thought, might have been increasing fees to pay for additional resources but, in fact, the increase in civil fees was merely to subsidise cases in the Family Division where, overall, they make a loss financially.
The historic underfunding of the court service has been serious and has had a serious impact.
There are reforms of the courts service which are currently at an early stage and those may repair some of the damage that has been caused but I think the comparison, in a sense, with the great expertise of the legal profession in England and Wales compared to the reducing expertise of the courts service is a sad reflection on public spending cuts.
It is a reflection of, first of all, a reduced staff within both the courts service and within the MoJ, many of whom now are working flat out to the best of their ability but, even doing that, really are not able to serve either the judiciary, the profession or court users. Therefore, I think that funding problems are having a significant impact.
It is unfortunate, to put it mildly, that it is coming at the same time that fees are being increased, without those increased fees then being spent in the areas where people are paying those fees.
You are now in a different forum: you have recently joined the Singapore International Commercial Court. It is quite early days but, based on your experiences so far, what strikes you as the key contrasts with the High Court in England and Wales?
As an international judge in the Singapore International Commercial Court, which is part of the Supreme Court in Singapore, we sit on an ad hoc basis in cases either brought by consent in that court or transferred from the High Court of Singapore. I think that, in a sense, the working environment is very much similar to the working environment of an English High Court judge. There are discussions between judges, the judges are well-known and well-respected within Singapore and, indeed, within the region.
One of the contrasts is funding. There aren’t the funding pressures on the court that there are here. Where it is necessary to fund things, it has been done over the years. An example is the electronic filing of claims and court documents, where Singapore is now on its second phase, upgrading their system. That compares with here where, at long last, a pilot scheme is about to start in the TCC in order to introduce, it is hoped ultimately throughout the court system, both the filing of claims and other documents and the online payment of fees. That has, to a large extent, been a victim of a lack of funding in the past here. One can see that it is necessary. Indeed, it was an element of the Jackson reforms that there should be more use of IT in the courts. I think, as an aside, that obviously, also, an efficient IT system can also make up for pressure on court staff.
Otherwise, sitting in court in Singapore, being addressed by Singaporean or foreign counsel is very much the same as sitting in court in England being addressed by counsel here.
Join us in Part 3 of the series, for some crystal ball gazing about what the future might have in store for civil litigation in England and Wales.