Arbitration should be used. It will be quicker, much more co-operative and flexible and less expensive than the current civil justice system. There are powerful reasons in existence now for turning away from use of the civil justice system as the only means to resolve personal injury and clinical negligence claims.
- First, because the Ministry of Justice has cut back court funding in the last three years by over 20% (www. theguardian.com/society/2010/aug/10/ministry-justice-jobscut-third).
- Secondly, because court fees have been increased in personal injury and clinical negligence cases (Cmnd 8845).
- Thirdly, because proposals are in place to increase court fees more substantially so that personal injury and clinical negligence claims will effectively cross-subsidise family and other claims in the civil courts.
- Fourthly, because the county courts no longer provide the efficient local service which they were set up to provide. The County Courts were set up in the mid 1800s in response to the need in the provinces for local justice when commerce, motoring, business and factory activity were expanding rapidly (“A History of the County Court, 1846–1971”, P Polden, Cambridge UP). London justice was not enough. Historically each local county court was provided at the taxpayers’ expense to assist litigants in person to resolve their disputes and to help solicitors to issue and manage cases locally. Local staff were provided to man/woman the front desk. Local administrators were provided to run the back office and to give telephone guidance and support so that cases could be handled efficiently. Case files were kept with reasonable efficiency. Telephone enquiries were answered. Skeleton arguments and bundles were passed on to judges in time. Orders were typed out in good time and sent out by the court office. However the recent cuts have abolished the front desk service in county courts. Cases can no longer be issued in local county courts. These have been converted into mere post boxes for the mega-centre in Salford which now controls all issuing. Bundles for hearings and skeleton arguments regularly fail to reach the judge handling the hearing. Orders are no longer typed up in the local court but instead go to another mega-centre in Haywards Heath, where many are typed up and sent out to parties after the relevant dates for action set out in the order.
- Fifthly, the revision of the overriding objective in the Civil Procedure Rules in April 2013 has created havoc for personal injury and clinical negligence cases. The rebalancing of the overriding objective away from “justice between the parties” and towards the courts own convenience has led to a massive increase in striking out applications, procedural breach punishments and a consequential lack of co-operation between lawyers who are trying to trip each other up so as to gain an advantage for their client. The Judgment in Mitchell and the plethora of cases arising from it are a matter of record and a cause for concern. The Court of Appeal’s effort in Denton to allege that the legal industry as a whole had misunderstood the judgment in Mitchell was a classic example of a failure to say sorry for the chaos caused.
- Sixthly, trials are being bumped out of county court lists far more often in the week before trial than they were three years ago. In fixed costs Fast Track cases no extra fees are paid for the lost work caused by these last minute adjournments either to the advocates or the solicitors. The inconvenience to witnesses and experts and the parties themselves is ignored.
- Seventhly, the introduction of costs’ budgeting in multitrack cases has added a layer of additional costs to the whole process which it does not need and has led to a plethora of costs’ management hearings, in which interlocutory judges wield an unsharpened axe to costs’ budgets in a rough and ready way without sufficient reference to the individual needs of the parties to prove their cases on complicated issues. Imposing a 20% cut on a costs’ estimate and thereby hobbling a party’s ability to prove his case is a step away from justice.
- Eighthly, solicitors who find cases they run have been struck out for non-trivial procedural default are finding their insurance premiums for professional negligence insurance rising sharply. There is no equivalent rise being proposed in the hourly rates which they recover for their work. The committee chaired by Mr Justice Foskett who reported recently on hourly rates found its report shelved by the Judiciary. It appears therefore very unlikely that hourly rates will rise to take into account the rise in insurance premiums, let alone the effects of inflation over the last three years.
So what should parties in personal injury and clinical negligence claims do? I suggest that we need to take back control over the process of resolution. That can be achieved best by constructing a robust and fair arbitration system or systems. The key to the justice in such a system lies in the quality of the judges, so I suggest that experienced, independent, personal injury and clinical negligence silks should be the arbitrators. The key to procedural fairness in such a system is reliance on the Civil Procedure Rules before April 2013 where the overriding objective was justice between the parties. The key to keeping the costs in such a system reasonable is for the parties to agree hourly rates in advance on both sides at around, say, 10% below the market rates, thereby creating certainty and abolishing the need for lengthy costs’ hearings.
The benefits of arbitration are multiple. All of the inefficiencies and the costs of the county courts and the High Court will be avoided. There will be no court costs, no costs budgeting hearings, no waiting around at court for hearings to be started, no last minute adjournments, no lost trial bundles, no lost skeleton arguments. There will be no Mitchell strike outs, no wasteful procedural punishments for minor infringements of timetables and most important of all there will be co-operation between the parties lawyers. Co-operation is at the root of efficient handling of claims. My experience of having set up one such system is limited for the company is in its infancy. Others may find a more polished route.
E-filing: Under the system which I propose, to start the arbitration the Parties simply download and sign the Arbitration Agreement, setting out the agreed hourly rates. This is then fi led (uploaded) through an internet based court e-system which is paperless. Pleadings and orders, witness statements and medical reports are uploaded onto the system. The parties and the arbitrator have a user name and password to access all of the filed documents.
Running the procedure: The parties set the timescales. If they cannot reach agreement, they contact the arbitrator who makes a decision either on paper or at the end of a telephone hearing.
Early neutral evaluation: When the evidence is complete an early neutral evaluation will be requested from the arbitrator and that will settle the claim if the parties accept the evaluation. The parties can arrange a joint settlement meeting whenever they like or if necessary a mediation.
Arbitration: If no settlement emerges the claim can go on to a final arbitration hearing (trial). Arbitration hearings are face to face and take place either in the arbitrator’s chambers, or in the solicitors’ offices, or in commercially hired rooms. Rights of appeal from arbitrators’ decisions are restricted to points of law in the main. But the Court of Appeal rarely allows decisions on the facts to be appealed in any event.
Despite the enormously high quality and undoubted independence of our High Court and County Court judges, it is time for a change away from litigation. A change away from a service which is no longer always civil and no longer focused on justice between the parties. A change away from an expensive, slow, inefficient, heavy handed system which encourages lack of co-operation. It is time for the parties, the insurers and the injured to co-operate again. To litigate through arbitration. To settle with properly paid professional advice under the guidance of experienced arbitrators.
So I suggest that we arbitrate, not litigate. It is better for our clients, whether they are insurers or those injured by tortfeasors.