In case you’ve been living on a desert island for the last year or so, in July 2015 Lord Justice Briggs was asked by the Lord Chief Justice and the Master of the Rolls to carry out a review of the structure of the civil courts of England and Wales. Many conferences, presentations and informal consultation sessions later, and Briggs LJ published both an interim report (in January 2016) and, on 27 July 2016, his final report on the Civil Courts Structure Review. The final report builds on and refers frequently to the interim one, and the two really ought to be read together.
The final report starts by setting out the current structure of the courts and summarising various other programmes of reform. Briggs LJ then considers the main weaknesses in the system, which he identifies as:
- Inadequate access to justice for individuals and small businesses.
- Inefficiencies due to the use of paper.
- Unacceptable delays in the Court of Appeal.
- Under-investment outside London.
- Widespread weaknesses in the processes for enforcement of judgments and orders.
He goes on to make a number of wide-ranging and, in some cases, detailed recommendations. Many of the suggestions are likely to have a limited impact on City firms and their clients (always assuming, of course, the recommendations are implemented). However, other proposed reforms may be more significant than might appear at first glance, if only because they are likely to create practical difficulties if implemented.
Online court
Much of the focus, both during the review and following publication of the final report, has been on the proposal for a three-stage “online court”. This is something of a misnomer (“unhappily” named, as Briggs LJ puts it) and he welcomed suggestions for a better name. He finally landed on “Online Solutions Court” as his preferred option. The online court, as currently envisaged, would take claims through an automated “triage” process, move on to a “conciliation stage” and (if necessary) progress to a “determination stage”. The determination stage may or may not involve a traditional trial.
Briggs LJ’s preference is for a “soft” launch (that is, a sort of pilot scheme) for straightforward money claims, perhaps initially up to the small claims limit of £10,000 or for certain types of case only. Once the online court is fully established, the ceiling would rise to £25,000. Use of the online court would then be mandatory for claims up to this value. For the foreseeable future, then, City firms are unlikely to have many cases that fall within the ambit of the online court, but they may have some.
It may be an easy point to make, but those with experience of existing court IT systems (for example, the new CE-Filing system for the Rolls Buildings courts) may well be sceptical about an all-singing, all-dancing online dispute resolution system. Although similar systems are being planned or implemented in places such as Canada, there is currently no true precedent for what’s being proposed. Even a well-planned and well-funded system must have some teething problems, and it’s likely to take some time to get used to whatever form the system takes.
High Court v County Court
One recommendation that has received rather less attention, but may have significance for some City practitioners, is the proposal that the threshold for any claim to be issued in the High Court be increased immediately to £250,000, and subsequently to £500,000 (from the current minimum of £50,000 for personal injury claims and £100,000 for others). It would still be possible for claims to be transferred to the High Court on grounds of complexity or public importance, but Briggs LJ suggests that applications for transfer should be scrutinised to avoid “excessive numbers of transfers up to the High Court”. In these circumstances, there must be an increased risk of low value but complex claims being heard in the County Court, with the attendant worries about less specialised and experienced judges being out of their depth, limited expert evidence being permitted and so on.
A similar concern arises from Briggs LJ’s suggestion that the County Court alone should be responsible for enforcement. It’s fair to say that the County Court presents some different challenges from the High Court, especially for those used to dealing with the latter. Some comfort, though, comes from his concession that appropriate enforcement issues could be transferred to the High Court.
Appeals
Although Briggs LJ identifies delays in the Court of Appeal as one of the five main weaknesses he is seeking to address, and it is one that concerns large and small firms alike, there is relatively little in his report about changing the current appeal system. This is largely because changes have already been made recently, or are in the pipeline. Earlier this year, the Civil Procedure Rule Committee conducted a consultation on (among other things) raising the threshold for permission so that only appeals with a “substantial” prospect of success would be heard by the Court of Appeal. Currently, only a “real” prospect of success needs to be demonstrated, unless there is some other compelling reason why the appeal should be heard (CPR 52.3(6)).
That specific proposal was abandoned, partly (no doubt) because it was unclear what “substantial” would mean in practice, but other changes, to be introduced in October 2016, should make a significant impact on the Court of Appeal’s backlog of cases. These include the removal of an appellant’s automatic right (in most cases) to renew the application for permission at a hearing when it is initially turned down on paper (new CPR 52.5).
Other reforms
It is important to read the report in context. As Briggs LJ points out, there are a number of reforms, either under way or under consideration, which fall outside the scope of the report but cover broadly the same ground. For example, Briggs LJ’s review is closely connected with the current HM Courts and Tribunals Service Reform Programme, and there is some overlap. The most eye-catching of these reforms is an expansion of the fixed costs regime, which allows successful parties to recover a fixed sum in respect of their own legal fees from their opponent, rather than the fees themselves being recoverable subject to assessment by the court. Jackson LJ has proposed that the current fixed costs regime should be expanded to cover all civil proceedings up to a value of £250,000. Fixed recoverable costs are well-established in Germany and New Zealand, but whether they will work well here is fiercely debated. Still, the advantages of introducing such a system in mainstream litigation are clear: it would avoid much of the expense and uncertainty associated with the current costs regime. Jackson LJ has even suggested extending the regime to all civil litigation, whatever the sum in dispute, although he is not recommending that for now. Such a change would be radical indeed, completely eclipsing, for example, the costs management regime he introduced only three years ago.
Other initiatives outside the scope of the report, but sharing the same broad purpose, include reforming the rules governing damages-based agreements. These have been used very little since being introduced as part of the Jackson reforms.
Conclusion
Given that much of the focus of Briggs LJ’s report is on access to justice and litigants in person, it is not wholly surprising that some of the reforms are unlikely to have a direct impact on City firms and their clients. On the other hand, some suggestions (like the use of case officers to carry out some judicial functions) seem unlikely to have a significant practical impact on any court users. However, they may cause concern about adverse effects on the quality of the courts’ work.
At the end of the day, Briggs LJ’s recommendations are just that. Whether they will be implemented en masse is unclear. They are not interdependent in the way that Jackson LJ’s were, and preparations for Brexit are, of course, a huge distraction. Briggs LJ’s review has not taken account of Brexit, but his view is that his proposals and the other reforms in progress are likely to be all the more necessary as a result of it. Whether those with the power to act on his suggestions will agree remains to be seen. As Briggs LJ acknowledges:
“It is for others to decide which of the above recommendations should be implemented, and by what means.”
As with Brexit, therefore, much is up in the air.
