The effect of cuts in the criminal and family legal systems is depressingly familiar. Less well known, however, is how budget constraints have affected the civil court system: this Cinderella service is now so poorly resourced that it continually wastes the time and money of litigants and legal representatives, and all too often threatens the interests of justice.
The strain is most keenly felt in the county court, which handles the vast majority of civil claims and hearings. Its range of work is huge and varied: the typical list at a busy civil justice centre includes social housing possessions, parking tickets and road traffic small claims, along with reasonably complex personal injury claims, mortgage and property disputes, and some commercial litigation.
The county court’s infrastructure has been pared back so far that it now struggles with the strain of its workload, as junior barristers with predominantly county court practices know all too well.
The county court judiciary is too small to handle the caseload, and the government appears reluctant either to recruit or to list sufficient fee-paid judges to fill the gaps. Civil matters have always been overlisted – their ability to settle at short notice necessarily means an airline-style over-booking policy is to some extent sensible – but the overlisting of trials now exceeds good sense and puts parties to trouble and expense.
I recently took a six-month sample of my diary. In that period I had actually appeared at 12 effective fast track trials: each was a personal injury case; counsel were instructed on both sides in each case; almost all were listed for a whole day, and involved taking evidence from live witnesses.
However, alongside these were 14 trials marked by my clerks as ‘vacated due to lack of judiciary’. In other words: more than half of the fast track trials I had been instructed to appear in had not gone ahead because there was no judge available to hear them. In almost every case, the notification came the day before the hearing, leaving witnesses, counsel and parties high and dry.
The effect on counsel is, in truth, less severe than at the publicly funded criminal Bar: in most cases the agreed or fixed brief fee will be deemed incurred (at least in part), and barristers are usually paid at least something for these ineffective trials.
But the cost must fall somewhere, and it unfortunately lands with our unhappy clients: insurance companies, public bodies, businesses and private individuals, who end up paying their lawyers twice to attend court once.
The strain on judicial lists is apparent at every county court hearing centre one attends. It is not uncommon to see tens of hours of hearings listed before each single judge at 10am, with an equally ambitious workload listed again at noon, and again at 2pm. Of course, some don’t go ahead and others take very little time; but it makes for harried and frazzled judges, stressed litigants, and lawyers who are depressed, bored and listless from dissipated days spent doing nothing more than hanging around.
We place increasing emphasis on wellbeing at the Bar and it is important to bear in mind the solid body of psychological studies linking feelings of lassitude, idleness and pointlessness at work with low mood and depression. Having a job where one’s working day is mainly spent sitting about in waiting rooms is not only poor value for our clients, but it is also bad for the mental health of the junior Bar.
The strain on lists leads to knock-on effects elsewhere. After court closures and the consolidation of work into fewer hearing centres, many court buildings cannot physically cope with the number of people they have to cater for. Bagging a private room for a pre-court client conference is a rare luxury, but increasingly, even getting a seat where one cannot be overheard by the opposition is a bonus. Most county court barristers will have experience of holding conferences in corridors and stairwells, and of balancing files on window sills and bins.
The Central London ‘mosh pit’
Overlisting reaches its zenith in the spectacle of Central London County Court’s ‘blitz courts’, which occur on special occasions (chiefly, in the summer and at Easter). There are two huge floating lists – one for fast track and one for small claims trials – and the parties are directed to wait in the ground floor lobby before being directed to a judge on one of the upper floors.
The scene is one of utter chaos, as literally hundreds of lawyers, litigants and witnesses compete for approximately 30 seats. It is impossible to hold a meaningful conference with a client; indeed, it is a job being able to be heard over the din. It is not for nothing that it is known to many junior barristers as ‘the mosh pit’.
"When hearings are adjourned because of a lack of judiciary, it should be routine to ask for an order making that fact express: most county court judges, as sick of the system as we are, are happy to make the order."
The last time I attended I felt it necessary to apologise to my astonished client, as we held a ‘conference’ stood up outside the main entrance to the Thomas Moore Building, sheltering under a canopy from the rain. We met and signed in before 9:30am; we didn’t get a seat till 2pm; we were finally heard at 3pm.
Ultimately, these short-sighted costs ‘savings’ impose greater costs in the private economy than are saved in the public sector: not only for our immediate clients, but in the wider ability of lawyers to provide a service to the public. Look around a county court waiting room, at the rows of barristers and solicitors chit-chatting or scrolling on their phones as they wait to get called on, and remind yourself: they are highly trained professionals; their time and expertise are valued; every hour wasted on waiting is an hour not available to people who need advice and representation.
‘Efficiency’ and ‘modernisation’
What the court service desperately needs is simple efficiency reforms, to help digitise simple processes and cut down on its reliance on labour-intensive paperwork. Judgments and orders are still usually made in manuscript: at some London hearing centres there is a six- or seven-week backlog for simple orders and directions to be typed up and sent out.
Increasingly, litigants are sent directions which were practical when made, but which are difficult or impossible to comply with when they are finally sent out. One county court hearing of mine has had to be relisted three times after both counsel sent in dates to avoid, because by the time the court administration came to consult the dates sent in, they were already hopelessly out of date.
The civil court service still runs in a 1970s manner to match the décor of most hearing centres: admin staff are tied up with monotonous, routine work which could easily be automated, and trollies laden with files and documents (all of which exist in electronic form on somebody’s computer, somewhere) trundle endlessly down long, tatty corridors.
Instead of these simple changes, which could improve day-to-day efficiency and improve the experience of regular court users, the government chooses to prioritise the ‘online court’ and video hearings: pointless boondoggles at best, a serious interference with the proper administration of justice at worst.
There is also far less to the much-vaunted £1bn ‘modernisation programme’ than meets the eye. The court estate needs considerably more than this just to stand still and keep up with routine maintenance. Too many court buildings are decrepit, leaking and draughty, with facilities and equipment to match. Even after the programme is completed, most courtrooms will still lack modern audio-visual equipment, or even power outlets for counsel’s use.
Reading County Court’s broken lift became so notorious it developed its own Twitter account, with more than a thousand followers, all eager to see when HM Courts & Tribunals Service would finally get around to restoring the ability of wheelchair users to access the third floor hearing rooms.
Does the civil justice system matter?
How much does this matter? Of course, few county court matters touch directly on matters of individual liberty, the social order, or the immediate safety and welfare of the vulnerable: it rightly takes its place behind the criminal and family courts in the hierarchy of concern about the effect of cuts to the justice system. But its work is still essential to the functioning of our society. Rights, including private law rights, are worthless without effective remedies.
If claims for damages, injunctions and other civil remedies are not dealt with fairly and expeditiously, the underlying substructure of our society and our economy starts to become eroded. Businesses rely on private law remedies to be able to operate; people who have sustained injury, loss and damage need compensation for civil wrongs so that they can alleviate their suffering and move on with their lives. Our ability to call ourselves a society governed by the rule of law relies on the effectiveness of our civil and private law system, just as it does on our approach to criminal, family and administrative law.
Barristers and other legal professionals need to exert their own pressure on the system wherever they can. When hearings are adjourned because of a lack of judiciary, it should be routine to ask for an order making that fact express: most county court judges, as sick of the system as we are, are happy to make the order. There is a process – all too opaque – for claiming wasted costs back from HMCTS in these circumstances, but there are cases of the Parliamentary Ombudsman ordering those costs to be paid when the Court Service has dragged its heels.
Otherwise, lawyers need to rely on the advocacy skills we are paid to exercise. The ‘stakeholder’ culture of the public sector can be turned to our advantage. If the body of complaints about the service becomes so continuous and so laborious to deal with, and if applications for costs to be paid from central funds become so numerous, HMCTS may yet be forced to reconsider its priorities.
David Green is a barrister at 12 King’s Bench Walk, specialising in personal injury and employment law.