During a recent visit to the County Court Money Claims Centre in Salford (CCMCC), I was taken aback to learn that in the year April 2015 to March 2016, the CCMCC issued 322,000 claims. In this “age of austerity” and with judicial time and resources at a premium, how is HMCTS responding to the challenge of dealing efficiently with high-volume litigation?
One recent initiative has been the introduction of the County Court Legal Advisers Pilot Scheme, for which provision is made in PD 51K (the Pilot). The Pilot applies to money claims started at the County Court Business Centre in Northampton (CCBC) and at the CCMCC. It commenced on 1 October 2015 and was scheduled to end on 30 September 2016. However, in light of positive experiences to date, the Civil Procedure Rule Committee has approved an extension to the duration and scope of the Pilot, which will now run until 31 March 2017.
Against a backdrop of growing debate regarding the resourcing of our judicial system, and with HM Online Court potentially on the horizon, the Pilot offers a thought-provoking glimpse into what might be described as “judicial triage”.
What is the purpose of the Pilot?
The Pilot is premised on the identification of routine, non-contentious judicial “box work” (paper applications) which may be undertaken by appropriately qualified and trained court officers (Legal Advisers), subject to judicial supervision and guidance. The aim of the Pilot is to examine whether, through the use of Legal Advisers, it is possible to release additional deputy district judge (DDJ) or district judge (DJ) resources for matters requiring substantive determination or more complex case management, while ensuring that the quality and speed of routine decision-making is not adversely affected.
Who are the Legal Advisers?
They are court officers assigned to the County Court, who are either barristers or solicitors (PD 51K.1.2). In practice, the Legal Advisers are experienced court officers with a family court or magistrates’ court background, who have been trained to undertake civil work. There is currently a rota of six Legal Advisers, one of whom works alongside the two or three DDJs who sit at the CCMCC each day to deal with the substantial volume of money claims box work.
What are they permitted to do?
A Legal Adviser may exercise the jurisdiction of the County Court with regard to the matters set out in the first column of the schedule to PD 51K, subject to the corresponding restrictions set out in the second column (PD 51K.2.1), which bear close analysis. For instance, Legal Advisers may deal with applications to amend the particulars of claim or the amount of the claim pursuant to CPR 17.1(2). However, their jurisdiction to do so is confined to applications which are (a) received before a defence is filed, or (b) received after filing of a defence where the claim has been, or would normally be, allocated to the small claims track.
By way of illustration of the nature and scope of the Legal Advisers’ workload, set out below is a selection of the functions which they may undertake (subject, in each case, to express jurisdictional limitations):
- Rectifying a procedural error pursuant to CPR 3.10.
- Extending time for service of the claim form pursuant to CPR 7.6.
- Adding or substituting a party to the proceedings pursuant to CPR 19.4.
- Setting aside default judgment pursuant to CPR 13.2.
- Staying proceedings pursuant to CPR 26.4(2A) or extending the period of a stay pursuant to CPR 26.4(3).
- Ordering interim payments pursuant to CPR 25.6.
- Issuing judgments or orders in terms agreed pursuant to CPR 40.6(5).
A closer examination of the schedule to PD 51K shows that the Legal Advisers’ jurisdiction is often confined to cases where applications are made by consent. In some cases, they may only deal with the first application of a particular sort. Various other types of limitation apply.
The common theme running through the schedule is that the Legal Advisers’ work is straightforward, non-controversial and would otherwise form part of the daily workload of a DDJ or DJ. Broadly put, the Legal Advisers generally deal with matters requiring exercise of a “generic” (rather than “original”) discretion, or which are of an administrative nature. Parties have the right to request reconsideration (by a DJ) of a Legal Adviser’s decision (PD 51K.3). However, in practice, the nature of the Legal Advisers’ work seems likely to limit the prospect of such requests being made. It is understood that there have been just four reconsiderations since the Pilot was launched.
Has the Pilot proved successful?
According to Briggs LJ, who visited the CCMCC in the early days of the Pilot (November 2015), “the model whereby suitably qualified Case Officers carry out tasks under close judicial supervision works well” (Civil Courts Structure Review (CCSR): Interim Report, paragraph 3.29).
During my own visit to the CCMCC in June 2016, the feedback that I heard on the Pilot was very positive. As well as assisting with CCMCC business, the Legal Advisers are fulfilling an important role in relation to the work of the CCBC, which includes a bulk claims service and Money Claim Online. It is estimated that the use of Legal Advisers currently “saves” a total of 9.5 judicial days per month, without compromising on quality or speed of decision-making.
Since there are no judiciary on site at Northampton, all batches of box work from the CCBC were previously circulated to DDJs sitting elsewhere. However, under the Pilot, a significant proportion of the Northampton box work is transmitted to Salford for consideration by the Legal Advisers. This has resulted in a substantially improved turnaround time for Northampton box work (reduced from 4-6 weeks to 7-10 days), without impacting on the turnaround of Salford’s own work.
The allocation to non-judicial court officers or Case Officers of some work currently undertaken by judges is a key focus of the HMCTS Reform Programme. It is also a prominent topic in Briggs LJ’s Interim Report. Briggs LJ envisages increasing use of Case Officers in the civil justice system – not just in the new Online Court (where they would fulfil a special investigatory and conciliatory role) but even, for example, in the Court of Appeal. He also suggests that if Case Officers could relieve DJs of significant amounts of box work, those DJs may be able to receive work passed downwards, so as to create capacity for senior judges to assist with the Court of Appeal’s heavy workload (CCSR: Interim Report, paragraph 5.111).
The reported success of the Pilot to date suggests that Case Officers could have a valuable role to play in ensuring that judicial resources are deployed as effectively as possible and in helping to alleviate bottlenecks in the system. A redistribution of what might be termed the “less judicial” aspects of a judge’s workload to suitably qualified and experienced civil servants also offers HMCTS the opportunity to make cost savings, consistent with what Briggs LJ describes as “the inevitable need to focus on efficiency and economy in a time of austerity” (CCSR: Interim Report, paragraph 1.8).
Debate continues, however, as to whether all Case Officers should be legally qualified. Many tasks which could conceivably fall within a Case Officer remit are currently performed by court officers who may not have legal qualifications, including approval of some consent orders, entry of some default judgments, and (since April 2016) the making of many interim charging orders. However, PD 51K proceeds on the basis that the functions set out in the accompanying schedule are undertaken by legally qualified court officers.
So: how far could (or should) the jurisdiction of a Case Officer ultimately extend? Seemingly not to a final determination of substantive rights, or the approval of settlements on behalf of children and other protected parties (CCSR: Interim Report, paragraph 4.22). Case Officers are not intended to be a new species of judge. Briggs LJ notes that “there would continue to be clear blue water between the District Judges and [the] Case Officers, who would remain civil servants employed and largely managed by HMCTS, but working under judicial supervision” (CCSR: Interim Report, paragraph 4.21).
The functions currently included in the schedule to PD 51K are all examples of routine case management, and while exercising those functions may require some legal and procedural knowledge, it does not require complex “judicial” evaluation and analysis. But where should the line be drawn? For example, could legally qualified Case Officers, with a minimum period of relevant post-qualification experience, deal with some or all of the following procedural matters, at least in what are currently designated as small claims or fast track cases:
- Routine case management involving standard directions?
- Applications for extensions of time for compliance with case management directions?
- Unless orders based on clear procedural default?
Of course, one issue is that if a Case Officer were to move away from purely generic exercise of discretion towards a more judicial function, the prospect of one or other party being dissatisfied with their decision is likely to increase. It would clearly be counter-productive if the decisions of a Case Officer became routinely subject to reconsideration or review by a judge, as this would negate the time and cost savings achieved through the initial reallocation of work from the latter to the former. Briggs LJ has mooted the possibility that a right of reconsideration be subject to a tight time limit and a modest sanction for any misuse (CCSR: Interim Report, paragraph 7.38). Under PD 51K, the parties have 14 days after service of notice of the Legal Adviser’s decision to make a request for reconsideration by a District Judge.
Through the Pilot, HMCTS and the judiciary are examining the potential for increased redistribution of what has traditionally been treated as “judicial” work to appropriately qualified court officers. The initial results appear encouraging. However, the precise boundaries to be drawn between the work of a judge and that of a court officer or Case Officer are still to be determined, and clearly there is a careful balance to be struck. It will be interesting to see how matters develop.