Last July I was asked by the Lord Chief Justice and the Master of the Rolls to carry out a review of the structure of the civil courts, with broad terms of reference, but a brief to deliver an interim report by the end of 2015. After an intensive period of research during the long vacation, including visiting 14 regional hearing centres in September and informal ‘Chatham House’ consultations with stakeholders, including the Bar Council and most specialist Bar associations, I delivered my interim report on Christmas Eve. It was published in January.
By the time you read this I will be half way through the second stage of my review, against a deadline for a final report this July. The time for written response expired in February, but a process of oral consultation, mainly at meetings in and outside London, will continue until the end of May. I am writing this in February, before receiving significant written feedback, so this article should not be read as responsive to that feedback in any way. I acknowledge that the timeframe is tight, but this is necessitated by the speed of advance, in parallel with my review, of the HMCTS Reform Programme, over the rate of progress of which I have no control.
Many of you will have read, or skim read, my interim report. If you have not, it is easily accessible (Civil Court Structure Review: Interim Report). I would encourage those who have not yet read it to do so. It would probably take a medium to long-ish train journey to get to grips with it. There is a sort of executive summary in Chapter 12, but it is not recommended as a short cut to scholarship. Nor is this article.
I am grateful to the editors of this magazine for an opportunity briefly to address the practising Bar about the profound implications for all of you who are involved in civil litigation arising both from the Reform Programme and from my review. The starting point is that I yield to no-one in my admiration for the Bar’s unique contribution to the quality of civil justice, and therefore to the rule of law, in England and Wales. You are a main foundation of a civil justice system which, as I acknowledge in Chapter 5 of my interim report, provides a quality of service unbeaten anywhere in the world, for those who can afford it.
Disproportionate legal costs
But a main theme of my report (also in Chapter 5) is the shocking fact that, following the virtual withdrawal of legal aid, civil justice is quite simply not available to the majority of ordinary individuals and small businesses, in relation to disputes which are moderate or small in money terms. This is because the legal costs which have to be incurred or risked are disproportionate to the value at risk, and because the culture and procedure of our civil courts makes litigating without lawyers virtually impossible, and potentially unfair when the opponent is legally represented. This does not merely affect the relatively poor who simply cannot afford legal representation, but also the many who sensibly regard going to court as a misuse of their money, because the costs at stake soon outweigh the value of the matters in dispute.
Valiant efforts following the Woolf and Jackson Reports have made strides in the right direction but, outside the important field of personal injury litigation, the fundamental problem remains a grave stain on our otherwise world class civil justice system.
Litigation without lawyers
The decision by government (in an age of austerity) to fund revolutionary change by digitising all our courts, to the point where litigation becomes paperless by 2020, creates a once and for all opportunity to put this right, by the creation of an Online Court, designed for the first time to enable civil disputes to be litigated without lawyers, precisely in those areas where, under the existing regime, the cost of using the service currently offered by lawyers is disproportionate to the amount at stake. £25,000 has been provisionally identified as the amount at stake below which that disproportionality usually occurs. But swathes of case types where this disproportionality does not inhibit access to justice, or where the traditional lawyer-led process remains vital to a just outcome, are nonetheless planned to be excluded, even if the value at risk is lower. Personal injuries (including clinical negligence) and possession of homes are two main examples. Chapter 6 of my report gives a detailed explanation of the thinking to date, and the issues still to be decided about the Online Court. Nothing is, as yet, set in stone.
It is not, incidentally, (as some press reports have suggested) intended to be a court without judges, or a court where matters in dispute are to be determined automatically by some algorithm embedded in a computer, or by a civil servant. But it is a court where the basic problem facing ordinary people, namely turning their heart-felt grievances into something formulated in legal terms, and enabling them to identify and present their documentary and other evidence, is capable of being addressed electronically and cheaply, so that both their opponents know the case to be met, and the court is equipped at the earliest possible stage with the materials necessary to decide it justly. It is also to be a court where, for the first time in civil litigation, mediation or other ADR would become a culturally and procedurally normal (though not compulsory) part of the court process, rather than just a privately available alternative to going to court.
Unbundling services and affordable advice
It should not be thought, merely because the Online Court may be designed in a way which enables people to litigate without lawyers, that lawyers are intended to be excluded from it. Not at all. Such a design would, however, encourage barristers and solicitors to provide unbundled and therefore more affordable services to those thinking of using the Online Court. It is the traditional service of representation by a team of barrister and solicitor from start to finish which is so often disproportionately expensive. Would-be litigants (whether as claimant or active defendant) will still benefit greatly from well focused, affordable advice at the outset, and there will be many cases where some professional representation, for example cross examination at a hearing, will be well worth the litigant paying for, even if the current proposal to use the small claims costs regime in the Online Court means that they would not be able to recover legal costs from their opponents, even if successful. It might even be possible to build in a very small element of fixed recoverable legal costs to encourage litigants to obtain limited advice and assistance of that type. Furthermore the Online Court would be designed to have a permeable membrane between it and the County Court, precisely to enable cases started in the Online Court to migrate to a more traditional (but still paperless) forum wherever the complexity or importance of the issues makes it appropriate, and then with a fixed recoverable costs regime that will enable recovery of a proportionate part of the legal costs by the successful party.
Access to civil justice
I am acutely aware that the practising junior Bar earns significant income, and provides a valuable service, in many cases where the amount at stake is below £25,000, and that considerable progress has been made in making barristers’ services more affordable by encouraging direct access. The Bar also provides a vital pro bono service to many deserving litigants, and will continue to do so in areas which will not be reached by the Online Court, such as the CLIPS service in the Rolls Building, and the pro bono project now being planned for the Court of Appeal. My hope is that the reforms now being considered will enhance those welcome developments, both within and outside the planned jurisdiction of the Online Court, so that the Bar’s service will become available to an ever widening proportion of those ordinary people and small businesses for whom access to civil justice is, at present, simply not a reality.
Contributor Lord Justice Briggs, Lord Justice of Appeal and Deputy Head of Civil Justice