‘Streamlining’ of English civil court procedure recommended in new review

Out-Law News | 29 Jul 2016 | 12:26 pm | 3 min. read

A new ‘online’ court to settle straightforward money claims, and delegating certain judicial functions to ‘case officers’ with legal training, are among the central recommendations of a review of the English civil courts by a leading judge.

Lord Justice Briggs, deputy head of civil justice, was commissioned to carry out the review last year to coincide with a wider programme of court reform by Her Majesty’s Courts and Tribunals Service (HMCTS).

With his 300-page final report, Lord Justice Briggs aimed to address what he described as the “five main weaknesses” in England’s otherwise “world class justice service”, according to civil litigation expert Richard Twomey of Pinsent Masons, the law firm behind Out-Law.com.

“The overriding theme of the report’s recommendations is the streamlining of processes, seeking efficiencies and attempting to devolve cases away from the High Court in London to regional justice centres to improve the operation of the court system right the way up to the Court of Appeal,” he said.

“The recommendation for the online court is the most controversial. As the report acknowledges, this would be a new and different procedural and cultural approach to the resolution of civil disputes, with claims under £25,000 potentially only the starting point. If it happens, this raises all sorts of questions, both for the future progress of claims and the legal profession. Not least is the question of whether claimants will in fact be willing to pursue claims with only limited professional legal support, and whether the courts will themselves be able to cope with such claims without the ‘filter’ of instructed lawyers to present cases in the proper way,” he said.

The online court envisaged by the report would be designed to be used by people with “minimum assistance from lawyers”, and come with its own set of “user-friendly rules”. It would initially deal with straightforward money claims valued at up to £25,000, and would eventually become the “compulsory forum” for resolving disputes within its jurisdiction, according to the report.

The idea would be for cases to be “triaged” at the point of submission using a software-based system to decide on the merits of the case, followed by arbitration via an assigned case officer. The most complex and important cases would be transferred upwards to the higher courts for a judicial decision. Help would be put in place for those with difficulty using computers, and a limited costs recovery regime would also operate.

Case officers, consisting of senior court lawyers and other officials, would be deployed more widely under the new system and able to assist with certain functions currently carried out by judges, such as paperwork and uncontentious matters. Decisions would, however, be subject to reconsideration by judges on request from one of the parties.

The report also recommends the creation of a new court-based out-of-hours private mediation service, along the lines of the former National Mediation Helpline, which would be located in county court hearing centres prepared to participate. More cases should be handled outside of London more generally, both through improvements in the ability to deal with High Court work in the regional courts and by re-allocating cases to the county court system, according to the report.

A single court, ideally the county court, should be appointed as the default court for enforcement of judgments and orders of all the civil courts, including the new online court, according to the report. Procedures would be put in place to allow appropriate enforcement issues to be transferred to the High Court, and for the enforcement of arbitration awards. All enforcement procedures should also be digitised, in line with the modernised IT systems currently being implemented more generally, according to the report.

“Better IT in the court system would definitely be a good thing,” said Twomey.

“Many organisations operate on a paperless basis and there is no reason why the courts should not work in largely in the same way. The experience of other jurisdictions and arbitrations which have embraced online filing and paperless hearings has largely been positive - but, as ever with IT projects, it is all about getting the design implementation right,” he said.

The report rules out a general unification of the civil courts at this stage, although recommends some minor amendments to the boundaries between the jurisdictions of the various lower courts. It suggests revisiting the various ‘divisions’ of the High Court at a later date, and this did not fall within the scope of the current review. There should also be a review of the question of whether the recent reforms to Court of Appeal procedure should be extended to cover appeals to the High Court and to circuit judges in the county court in due course, according to the report.

Commenting on the report, Lord Justice Briggs said that it would be “for others to decide which of the above recommendations should be implemented, and by what means”.

“In my view, if they are all substantially implemented, then the essentially high quality of the civil justice service provided by the courts of England and Wales will be greatly extended to a silent community to whom it is currently largely inaccessible, and both restored and protected against the weaknesses and threats which currently affect it,” he said.