On 12 January 2016, Lord Justice Briggs published his interim report on the structure of civil courts in England and Wales (the Interim Report). The Interim Report calls for the establishment of a new ‘Online Court’ to deal with lower value disputes, along with a unified system for the enforcement of civil judgments.
The Interim Report also calls for reforms to the structure and allocation of work within the existing civil court system, including: the promotion of regional centres to hear more big-ticket litigation, changes to routes of appeal, and more work being transferred from judges to non-judicial case workers. Briggs LJ is now consulting on the proposals and questions contained in the Interim Report.
What is the scope of the review?
Alongside an on-going programme of reform by HM Courts and Tribunals System (HMCTS), in July 2015, the Lord Chief Justice and the Master of the Rolls commissioned Briggs LJ to conduct an urgent review of the civil courts system in England and Wales, to include:
- The structure of the civil courts (the County Court, the High Court and the Court of Appeal);
- The boundaries between the civil courts and i) the family court, ii) the tribunals service and iii) private ADR providers; and
- The allocation of judges and delegated judicial officers to particular classes of cases.
The Interim Report was submitted to the Lord Chief Justice and the Master of the Rolls in December 2015 and published on 12 January 2016. The key recommendations are set out below.
New Online Court for lower value disputes
Without doubt the most radical proposal contained in the Interim Report is the establishment of a new Online Court, separate from the current High Court and County Courts, to deal (at least initially) with lower value civil claims.
The proposed Online Court, which adopts proposals first made by Professor Richard Susskind’s Civil Justice Council working group, would not simply be a digitised version of the existing civil courts. It would be designed from scratch to be more accessible to unrepresented parties, based on a three-stage process:
- Stage 1: interactive ‘triage’. This would include online help, through basic advice on the law relevant to the issues in dispute, and a guided process (through answering simple questions and ticking boxes) to produce the Particulars of Claim and Defence.
- Stage 2: conciliation and case management. The ethos behind the Online Court is that conciliation would be built into the system, although not compulsory. Conciliation would likely be facilitated by case officers, possibly online or by telephone.
- Stage 3: determination of the dispute. Unlike the present system, there would be no default assumption that there should be a face to face trial. Instead, it is envisaged that most disputes would be settled on the papers, online or by telephone or videoconference.
In keeping with the purpose of the initiative, the Interim Report recommends that claims in the Online Court would not be subject to the existing Civil Procedure Rules. Instead, they would be governed by a new set of simplified procedural rules.
Another key difference from claims in the County Court is that the proposed Online Court would not be expected to allow for the recovery of costs by a successful litigant. Whilst this may be welcomed by litigants in person, it could have a significant impact on businesses that are typically involved in large volumes of low value disputes with unrepresented parties. The absence of cost risk on unsuccessful litigants could also leave businesses facing more spurious claims.
The Interim Report recommends that the Online Court should initially be for civil claims (probably confined to money claims) with a value of less than £25,000. There would, though, be some discretion for more complex cases falling below that limit to be moved to the County Court (or simple cases above the limit to be moved in the other direction). If the Online Court proves successful, however, the value limit for claims to be heard in it could be increased.
Re-allocation of judicial resources
By contrast to the proposed new Online Court, many of the other recommendations within the Interim Report relating to the structure of the court system are less radical (if no less important). HMCTS’s on-going reform programme envisages transferring more routine processes from judges to a new class of non-judicial ‘case workers’.
The Interim Report supports such a transfer of routine work and considers some of the issues raised by this, such as:
- Whether case workers should have authority to resolve issues as to substantive rights (rather than just procedural matters); and
- The rights of parties to have decisions reviewed by a judge.
Unsurprisingly, the Interim Report recommends that case workers’ authority should be confined to procedural matters, and that parties should have the right to have a case worker’s decision reviewed by a judge.
The Interim Report also considers the potential for re-deployment of judges within the County Court, High Court and Court of Appeal. One of the key recommendations is that the main regional trial centres outside London should be given greater resources, with the aim of making them “true competitors for the management and trial of large and complex civil cases”. Whether the principle that “no claim is too big to be tried in the regions” will be borne out by more big ticket litigation being heard outside London remains to be seen.
In order to alleviate the current (and increasing) backlog of cases waiting to be heard in the Court of Appeal, the Interim Report also proposes increasing the use of High Court judges acting as deputies in the Court of Appeal. Other options are proposed, and will be consulted on in the next stage of Briggs LJ’s review, including limiting rights of appeal. One possibility is the removal of the right parties currently have to an oral hearing to renew an application for appeal that has been refused on the papers.
Structure of the court system
The Interim Report recommends creating a unified system and electronic platform for enforcement of awards, across the High Court, County Court and the proposed Online Court. It is hoped that a unified, electronic platform would reduce current inefficiencies and waiting times for enforcement procedures. This could make a real difference particularly to businesses that undertake large volumes of enforcement work.
One potential reform which is unlikely to happen anytime soon, though, is the full merger of the County Court, High Court and Court of Appeal into one unified Civil Court. Although this had been looked at as one option, the Interim Report does not recommend that this is necessary, at least before all of the other reforms suggested and already in progress have been completed.
Many of the recommendations set out in the Interim Report are provisional, and in some areas there are more questions than answers. Key proposals such as the establishment of an Online Court, however, are unlikely to change. With the government having announced £700m of investment into the courts system over the next five years, the political will and financial backing appear to be in place for this to happen sooner rather than later.
The proposed timetable and more of the detail behind the proposals will be set out in Briggs LJ’s final report, which will also address a number of issues for which the Interim Report provides no answers. Taken together, the final set of proposals is likely to call for a significant reshaping of the civil courts system in England and Wales, to meet the demands of the 21st century and beyond. One of the guiding principles of the Ministry of Justice’s reform programme is that it should provide a model which is future-proofed “designed for 2050 not 2015 – with a flexible infrastructure to keep it relevant.”
Briggs LJ is currently welcoming submissions, by 29 February 2016, on the contents of the Interim Report and the issues and proposals raised within it. Briggs LJ’s final report is due by the end of July 2016.