Annual Bar Conference 2016: The changing landscape

Darwin calculated that the strata of the Weald of Kent would have taken 300 million years to reach their present state of erosion, so judged on its title, one might have expected ‘The changing landscape’ to have proceeded at a stately pace but any such impression was quickly dispelled as Briggs LJ, Andre de Mestre, Eleanor Holland and Ruth Hughes tore through the Civil Courts Structure Review, Chancery Division initiatives, disclosure and paperless trials.

Briggs LJ was first out of the blocks, pausing only to establish how many of the audience had read his final report presented in July. Of the five weaknesses in the civil justice system he identified: access to justice; the tyranny of paper; backlogs in the Court of Appeal and under-investment, perhaps the most alarming statistic he offered is that without reform the Court of Appeal has a 50,000 hour backlog which is growing at 9,500 hours a year. The need to remedy long term systemic under-investment, particularly in the provinces, about which he was most passionate is, one suspects, the message the government will be least ready to hear. The most controversial proposal, the Online Court, which has been green-lighted by the MoJ, has lost, in his final recommendations, what Briggs LJ implicitly conceded, had been the anti-lawyer tone of January’s Interim Report. He was at pains to stress that the current proposals offered enormous opportunities to the ‘young Bar’ to provide cost-effective tailored solutions for online cases – bespoke advice provided on a direct access basis on particular points of law, for example – whereas solicitors would need to ‘unbundle’ their services in order to compete on price. He accepted fees per case would go down but thought this could be offset by an increase in work. In answering questions at the end he was realistic about the need for the Online Court to be properly resourced to avoid the sort of problems which have beset the County Court Money Claims Centre.

Given that this was the Bar and Young Bar Conference, it would be wrong to pass over what Briggs LJ had to say about judicial assistants (JAs) in the Court of Appeal. JAs will now spend 90% of their time with their allocated judge and Briggs LJ could think of no better grounding for those looking towards careers at the Bar than to do a stint as a JA. Applications very much encouraged.

Andre de Mestre explained some of the changes that are already being implemented in the Chancery Division in order to maintain London’s position as an international litigation centre (currently legal services make a £3bn net contribution to the economy). The institution of a Financial List is the first example of inter-divisional cooperation and the first appeal had already come through the system. Docketing cases and improving listing (a half day listing over a three-day window was incomprehensible to international clients) are also being worked upon. Other initiatives include the Shorter and the Flexible Trial Schemes, both of which are aimed at improving the quick throughput of smaller cases with important or difficult points of law.

Eleanor Holland on disclosure had me regretting that Family Mosaic Home Ownership v Peer Real Estate [2016] EWHC 257 (Ch), Illumina v Premaitha Health [2016] EWHC 1516 (Pat) and Positec Power Tools (Europe) Ltd v Husqvarna AB [2016] EWHC 1061 (Pat) had not been decided when I needed a really good argument about cost and benefit versus disclosure a few years ago. She finished on the use of predictive coding and computer assisted document analysis and the cases of Brown v BCA Trading [2016] EWHC 1464 (Ch) and Pyrrho Investments v MWB Property [2016] EWHC 256 (Ch), which led neatly into Ruth Hughes’s fascinating piece on paperless trials based on her experience of the use of the Magnum system in Ingenious Games v R&CC [2016] UKFTT 521 (TC). Interestingly in the closing Q&A – that there was time to fit one in was amazing given the amount that had been covered – Ruth Hughes and Briggs LJ differed on the merits of Magnum, with the latter saying that the need for the system to have an operator in court would probably prevent its widespread adoption.

Contributor Rawdon Crozier

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Rawdon Crozier

Rawdon Crozier is a barrister at KBG Chambers, Plymouth, specialising in property law. He is a member of the Counsel editorial board, writes for several legal journals and also writes poetry.