Commercial litigation: what’s coming up in 2016?

Written on 14 Jan 2016

Briggs review of civil courts system

As we discuss in more detail here, Lord Justice Briggs has been tasked with carrying out a wide-ranging review of the structure of the civil courts in England and Wales.

The interim Briggs’s report recommends the establishment of a new ‘Online Court’, primarily aimed at lower value claims. The Online Court would sit outside the High Court and County Court, operating subject to a simpler set of procedural rules, and would comprise three different stages:

  • an interactive ‘triage’ stage;
  • a facilitated, partly-automated mediation stage; and
  • a hearing stage.

Other recommendations contained in the interim report include:

  • the establishment of a unified system for enforcement of awards, across the High Court, County Court and the proposed new Online Court;
  • the transfer of more functions from judges to non-judicial case officers;
  • the concentration of more resources in the main regional centres, to allow them to hear more large and complex litigation; and
  • possible changes to routes of appeal and the resourcing of the Court of Appeal, to clear the current backlog of appeal cases.

Briggs LJ’s final report is due by the end of July 2016.

Investment in court systems and electronic working

Although there has been some recent progress with the on-going electronic working pilots (see here), further investment in technology across the courts of England and Wales is both well-needed and long-overdue. The government’s announcement in the 2015 Autumn Statement (see here), of £700m in funding for the courts over the next five years, was therefore widely welcomed.

The government is aiming to “fully digitise the courts and create a more modern estate”. Part of this will involve the sale of under-used courts, balanced out by improving the accessibility of the remaining courts through technology. 

The hope is that if the current electronic working pilot (which is scheduled to end in October 2016) performs as expected, further investment in and implementation of technology across the court system will lead to significant improvements in the next few years in the administration of litigation in England and Wales.

EU Online Dispute Resolution platform for cross-border consumer claims

As we have discussed previously, the EU Regulation on Online Dispute Resolution (ODR) provides that all online traders (defined as “a trader who intends to enter into online sales contracts or online service contracts with consumers“) must include on their websites a link to the EU’s ODR platform: The deadline for this has recently been pushed back, from the original date of 9 January 2016 to 15 February 2016, when the ODR platform will be available for use by traders and consumers. Ahead of that, it has already been made available to ADR providers to familiarise themselves with the system.

The ODR platform is intended to encourage cross-border purchasing by consumers across the EU, as part of the European Commission’s Digital Single Market initiative (see our dedicated hub here).  It will provide a portal for consumers to submit a complaint to a relevant, registered ADR provider with the aim of resolving the dispute. As with the recent ADR Regulations (see here), however, except for sectors which already have some form of mandatory ADR or ombudsman, businesses are not obliged to submit to ADR to resolve disputes.

Further court fee increases 

2015 saw the announcement of two rounds of increases in court fees.  A very significant rise in issue fees, to £10,000 (see here), and certain other fees in 1 March 2015, followed by the announcement of smaller increases in application fees, amongst other things, although these have yet to be implemented.

Following a further consultation, a further round of increase will be introduced early in 2016, although the rise will not be as high as had initially been proposed. The features of the further increases planned are that:

  • most court fees for civil proceedings will be increased by 10%;
  • fees will be introduced for tax proceedings, in the Tax Chamber of the First Tier Tribunal and in the Upper Tribunal Tax and Chancery Chamber, along with the General Regulatory Chamber;
  • fees will be introduced in the Property Chamber, of £100 to issue proceedings and £200 for a hearing, with a lower fee of £20 for certain proceedings including those relating to rent levels; but
  • the cap on issue fees for money claims will remain at £10,000 (it had previously been proposed that the cap would be increased to £20,000 or more).

The government has indicated that it expects to pass these further increases early in 2016 “as soon as parliamentary time allows”.

Changes to costs management

Changes to CPR rules and Practice Directions on costs management are expected to be announced shortly and to come into force in April 2016.  

The changes are aimed at simplifying the cost management process and addressing issues that some litigants have had in completing cost budgets.