On 27 July 2016 Lord Justice Briggs published his eagerly awaited final report on the structure of the civil courts in England and Wales.
As well as building on the recommendations in his interim report to establish an online court and a unified system for enforcement (which we previously discussed here), the final report makes a number of new recommendations. Many of the recommendations are aimed at improving access to justice for the “silent community for whom it is currently largely accessible“. Nevertheless, they have the potential to impact on anyone involved in litigation in England and Wales.
What are the weaknesses in the current system?
While acknowledging that the civil courts of England and Wales provide “a world-class justice service“, Briggs LJ sets out what he considers to be the five main weaknesses of the current civil courts structure:
- Access to justice: in Briggs LJ’s view “the single, most pervasive and indeed shocking weakness of our civil courts is that they fail to provide reasonable access to justice for the ordinary individuals or small businesses with small or moderate value claims.“
- Delays in hearing appeals: many of those consulted as part of the review expressed concerns that “unacceptable” delays in the Court of Appeal were affecting the competitiveness of the English courts as a forum of choice for international litigants. This was “by a long margin, the second most serious complaint about the civil courts“.
- The “tyranny of paper“: along with the use of “obsolete and inadequate” IT facilities, Briggs LJ identifies the continued reliance on paper as a major hindrance, causing inefficiencies for users of civil courts.
- Courts outside London: one of the consequences identified by Briggs LJ of the “serious under-investment in the provision for civil justice outside London” is that there is an excessive concentration of cases in the High Court in London. This in turn reduces the availability of the High Court judiciary to assist the Court of Appeal with its own workload.
- Weaknesses in enforcement: Briggs LJ considers that the enforcement of judgments and orders is “a seriously weak aspect of the service provided by the civil courts, in need of close attention“.
What are the key recommendations in Briggs LJ’s final report?
Taking each of the weaknesses identified above in turn, the key recommendations of Briggs LJ’s final report are as follows:
- Access to justice: access can be improved by:
- introducing a new online court for lower-value money claims (discussed in more detail below); and
- extending the current regime for fixed recoverable costs, including in the new online court.
- Delays in hearing appeals: a separate consultation by the Civil Procedure Rules Committee, which occurred in parallel to Briggs LJ’s review, has led to the implementation of a number of reforms that have the ability to address the difficulties faced by the Court of Appeal. This should gradually reduce the backlog to an acceptable level, but this will take several years.
- The tyranny of paper: one of the key objectives of HM Courts and Tribunals Service’s current reform programme, which is already underway, is the effective digitisation of the processes involved in civil justice. This should fully address the current inefficiencies, although there are likely to be some teething issues around the reforms.
- Courts outside London: Briggs LJ makes a number of detailed recommendations for addressing the current imbalance between the courts in London and elsewhere in England and Wales. Those recommendations include:
- allocating more High Court judges to large cases outside London, with case management to take place by video-conference where appropriate;
- assigning a minimum of three specialist Circuit Judges, covering Chancery, Mercantile, TCC and Administrative work, to each regional centre; and
- increasing the proportion of civil work that Circuit Judges undertake.
- Weaknesses in enforcement: Briggs LJ recommends that the enforcement of civil judgments and orders, whether from the County Court, High Court or the new online court, should take place through in court. He recommends that this should be the County Court, possibly via a common online portal. There would need, however, to be provision for complex issues such as cross-border enforcement to take place in the High Court; for enforcement of arbitration awards to take place in the Commercial and Mercantile Courts; and (possibly) for enforcement of construction adjudication awards to take place in the TCC.
As well as addressing these five main weaknesses, the final report contains a number of other detailed measures, such as the establishment
of a single portal for the issue of all civil proceedings. The report stops short of recommending the unification of the County Court and the High Court – acknowledging the value of the High Court as a respected brand in attracting international disputes. However, Briggs LJ does recommend increasing
the financial threshold below which a claim cannot be issued in the High Court, to £250,000 initially, with a view to a further increase to £500,000.
The online court
The stand-out proposal in Briggs LJ’s interim report was the establishment of a brand new, wholly online, court, for the resolution of money claims below a certain value. Having consulted on this and reviewed comparable systems in other jurisdictions (principally The Netherlands and British Columbia), Briggs LJ’s final report supports and builds on this proposal.
The online court (which Briggs LJ favours calling the “Online Solutions Court”) will have the following fundamental features:
- It will be mandatory for money claims below a certain value. Briggs LJ recommends setting the threshold at £25,000, following an initial “soft roll-out” applying to claims under £10,000. It will be possible to transfer sufficiently complex claims from the online court to the County Court (or vice-versa). The values and types of cases suitable for the online court will be subject to review, and could be extended to other types or higher value claims in the future.
- It will be based on a three-stage process:
- an automated ‘triage’ stage, giving claimants access to some basic form of advice and helping them to articulate their claim. In his final report, Briggs LJ breaks this stage down further to include: an initial stage, possibly including the provision of basic summaries of essential legal principles; an exchange between the claimant and defendant, to establish whether the claim is truly disputed; and (if necessary), the preparation of a claim form and particulars of claim. There would be a bypass for legally represented or sophisticated claimants;
- a conciliation stage, which could take one of a number of forms, including telephone, online or face-to-face mediation, or non-binding ‘early neutral evaluation’; and
- a determination stage, for cases that have not already settled, which might take the form of a conventional hearing, a telephone or video hearing, or determination by a judicial officer without a hearing.
- It will be designed for use, from start to finish, without lawyers. Lawyers will not be excluded from the process though. Briggs LJ acknowledges that even for more modest claims, the provision of specific legal advice can aid settlement, and that the proper testing of evidence requires cross-examination by lawyers. One of the challenges will be to ensure that the recoverability of legal costs is sufficient not to effectively exclude the use of lawyers, but not so high as to put off litigants in person for fear of liability for costs if they lose.
- In order to be accessible to non-lawyers, it will be based on a simplified set of procedural rules, rather than the existing Civil Procedure Rules.
- Much of the case management will be conducted by ‘case officers’ rather than judges. In his final report, Briggs LJ recommends that the more complex work will be reserved to a class of legally-qualified and judicially-trained case officers, which he recommends be known as ‘case lawyers’. Litigants will be able to appeal any decision made by case officers / lawyers to a judge.
- Appeals from the online court will be to the County Court, and thereafter to the Court of Appeal.
Since the interim report, the concept of an online court has received approval from HMCTS, which has included it as a specific project in its reform programme, and from the Ministry of Justice, which has begun work on establishing a rules committee and the necessary legislation to establish it. With the government having allocated significant resources to the court modernisation process, it therefore appears that an online court is going to be a reality in the near future. Its precise scope, operation and rules remain to be finalised, but the likelihood is that it will broadly follow Briggs LJ’s recommendations.
Briggs LJ’s final report sets out a wide range of proposals which, if enacted, will lead to significant changes to the structure of the civil courts in England and Wales. Some of the areas identified, such as the digitisation of court processes, are already the subject of on-going reforms, which are expected to deliver much-needed improvements in efficiency. Other areas, such as the establishment of a unified system for enforcement, will need to be considered further by HMCTS and the Ministry of Justice, which may opt for one of the less radical options that Briggs LJ suggests as alternatives.
The online court will undoubtedly represent the most dramatic change. Businesses that conduct a large volume of litigation against individuals (whether as claimant or defendant) will need to consider how to adapt their systems and strategies for the new court. The provisions on cost recovery may prove challenging, and it will take time to get used to the new rules, but the ability to conduct litigation online will provide opportunities to design more efficient systems and work flows for managing litigation.
Much of the emphasis of the final report is on improving access to justice for lower-value claims. However, if implemented, the proposals would lead to a significant proportion of cases that would currently be heard in the High Court in London moving, either to the County Court (eventually for all claims up to £500,000) or to the regions. The ability of those courts to handle these cases effectively, supported by more efficient systems and alongside a faster appeals process, will be crucial to maintaining confidence in the English Courts as a world-class system for the resolution of civil disputes.