Court & procedural reform to gather momentum in 2016 – and definitely not just for small claims

paperwork handover

The noise associated with the Government’s proposal to increase the small claims limit for injury cases to £5,000 may have drowned out another equally important announcement in the Autumn Statement: that some £700 million has been allocated to the MoJ to bring the court service up to date. A short summary was posted on The Policy Blog at the end of November.

This initiative is absolutely not about securing more IT spend so that courts can do more of the things they do now but more efficiently, nor is it just about arranging more video-conferences and attendances. It is a quite fundamental rethink of accessing the courts digitally, how they are structured and how cases and evidence are managed.

Professor Richard Susskind and Lord Justice Briggs are leading the way, with the full support of the senior judiciary in England and Wales. The former’s report, “On Line Dispute Resolution” published via the Civil Justice Council in February 2015, sets out a series of ideas and proposals designed to provide structured online access to justice – escalating from evaluation, through facilitation and to determination – for claims up to £25,000. In contrast, Brigg’s LJ’s task is to review the entire structure of the civil courts in England & Wales and includes the following terms of reference:

  • to carry out a review of the structure by which the civil courts provide the state’s service for the resolution of civil disputes
  • to make recommendations for structural change
  • to make recommendations for the deployment of judges and delegated judicial officers to particular classes of case.

His interim report should be delivered to the senior judiciary by the end of 2015, after which a more formal period of consultation is expected during the first half of 2016. A final report looks likely in the second half of the year. In these respects, this has strong echoes of the how the Jackson review was structured (and which itself lead to primary legislation about two and a half years after publication of the final report).

Taking a holistic and combined view of these initiatives, it is fair to say that they cover, potentially:

  • radical change to the small claims track (the Autumn Statement)
  • radical change to the fast track (Susskind’s ODR)
  • radical change to the multi-track and to appeals (Briggs)

In addition, all these reform programmes are underpinned by a common goal to drive out the tyranny of paper in civil dispute resolution of all types and to digitise entirely new procedural ways of working, very possibly with new types of ‘delegated judicial officers’. Briggs LJ has already said that the next four years are going to produce the most enormous revolution in the civil courts.

Although it is easy to be cynical about these sorts of projects, and to foresee all manner of barriers and problems in their way, it really does seem that there is very serious political commitment to make these sorts of changes. For example, only days after the Autumn Statement, Secretary of State for Justice Michael Gove said this of the court reform programme:

“This is the biggest investment in our courts service for a generation. It also comes despite the continuing need for fiscal consolidation … We need to make far better use of technology and buildings to provide easier access to a more responsive system – with swifter processes and more proportionate services.”

It is fairly clear that there seems to be the money (the £700 million above), the political will and the time (over the life of this Parliament) to bring these programmes to life. This high-level summary offers little indication of the likely practical impact these changes might have. That should become clearer during 2016. For the time being, it is far too early to say what any of this is going to mean in detail for insurers, other compensators and defendant lawyers.

We all need to engage fully in these programmes during 2016, and beyond, and will be required to adapt our businesses and relationships according how matters develop. With that in mind, we believe these initiatives will move up the policy agenda in 2016/17.

We look forward to working together on the reform process with our customers, with a wide range of stakeholders – including in our new capacity as ABI Associate Members – and with the key influencers and opinion formers shaping this new future.


About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).

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