In the words of children’s author Norton Juster, “Expect everything so that nothing comes unexpected.” With that in mind, and as we all breathe a collective sigh of relief at having survived 2017, it is time to usher in another year with a look ahead at what dispute resolution developments can be expected in the coming 12 months.
What follows is a brief overview. For full details, be sure to check our new what to expect in 2018 article.
Jackson/civil litigation reforms
By now I am sure you will be familiar with the ongoing programme of reforms stemming from Jackson LJ’s recommendations.
Looking ahead to 2018, we know that a new format bill of costs has been introduced as part of the 92nd CPR Update. It will be mandatory for costs recoverable between parties for work undertaken from 6 April 2018 in all Part 7 multi-track claims, except for cases subject to fixed costs, cases in which the receiving party is a litigant in person or where the court orders otherwise. The court form for the new bill is Precedent S. The next logical step is likely to be the making of amendments to Form N260, the statement of costs used for summary assessment, in order to bring it into line with the new bill format and Precedent H (the form for a costs budget).
In a topic that has been covered at length on the blog in 2017, we will also be paying attention to what comes from Jackson LJ’s report on recommendations for extending the fixed recoverable costs regime in civil litigation.
Separately, the Ministry of Justice (MoJ) is still awaiting the government’s response on its proposals to introduce mandatory fixed recoverable costs for clinical negligence claims above £1,000 and up to £25,000, in the fast track and the multi-track.
We also expect a review of Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and proposals for a disclosure pilot scheme.
Other changes to procedure
The coming 12 months should also see further developments on other procedural changes. For example, we expect eventual amendments to CPR 12, 13 and 14, although it is not yet clear when the revised rules will come into effect.
On electronic working, we expect there to be further revision of PD 51O in due course, in particular when it is extended to the district registries. As it stands, the original electronic working pilot scheme was extended until 6 April 2018 and, since 25 April 2017, it has been compulsory in the Rolls Building courts.
Further developments on which to keep an eye are those concerning pre-action protocols, including queries raised on the scope of the new Pre-action Protocol for Debt Claims, which has been in force since 1 October 2017. In due course, we also expect developments in relation to low value personal injury (employers’ liability and public liability) claims, disease and illness and dilapidations in commercial property, and construction and engineering disputes.
Civil courts: reforms and reviews
Three main issues come to mind.
The first is that progress is being made on the implementation of Briggs LJ’s (as he then was) proposals arising out of his civil courts structure review. Some form of online court certainly seems to be becoming more viable by the day, with the introduction of a new PD 51R on an online court pilot, which will run until 30 November 2019. PD 51S, which will also run until 30 November 2019, established an invitation-only pilot scheme for the County Court Online. We are also likely to see an expansion of the civil money claims system.
Over the past few months, we have provided timely information regarding the new Business and Property Courts (B&PCs), which came into operation on 2 October 2017. It is understood that B&PCs will open in Liverpool and Newcastle, to accompany those already in London, Birmingham, Bristol, Cardiff, Leeds and Manchester. Judging by papers from the 6 October 2017 CPRC meeting, we expect a new Part in the CPR (there already exists a PD, which came into force on 21 November 2017).
It is also worth bearing in mind that the MoJ is considering very carefully the implications regarding court fees, following the Supreme Court’s judgment in R (on the application of Unison) v Lord Chancellor
Court process: pilots
The Shorter trials scheme and Flexible trials scheme pilots will continue to operate in the Rolls Building courts until 30 September 2018 under PD 51N. Similarly, a financial markets test case scheme pilot, governed by PD 51M, is in operation in the financial list until 30 September 2020.
Following hostile reactions, proposals for flexible court operating hours have been postponed until February 2018, to allow time for re-tendering the process and to consult further with legal professionals on the proposed scheme.
EU and cross-border developments
Having made it this far (for which, I believe, congratulations are in order), it was inevitable that discussions about the UK’s withdrawal from the European Union would feature in any article considering anticipated future developments. The trouble, of course, is that it is very difficult to predict with any certainty what is going to happen regarding Brexit. At best, we know the government’s stated intentions, following the publication of a future partnership paper on cross-border civil judicial cooperation, including in relation to incorporating into domestic law Rome I and Rome II on choice of law and applicable law, continued participation in the Hague Conventions (service and choice of court agreements) and the Lugano Convention.
The UK government and European Commission have also published details of their respective positions on civil judicial cooperation in the context of withdrawal.
We will, of course, continue to follow any anticipated related amendments to the CPR (for example, CPR 6 and 74), progress on the EU Withdrawal Bill and other matters of interest.
So, just when you had planned your New Year diet resolutions, you are left with plenty on which to chew. The above are just a few of the many areas we will continue to monitor. For more information on these and other matters, such as insurance reforms, Welsh devolution implications, alternative dispute resolution and conduct and regulation, see the full what to expect in 2018 article.