Reform of the civil courts – interim report released today (12 January 2016)

The Briggs review, which focuses on civil court structures in England & Wales, enters a new and critical phase today, with the publication of the interim report (IR). A good deal of the IR examines key questions associated with the setting up of an Online Court to enable disputes of under £25,000 to be progressed by citizens, without necessarily resorting to formal legal representation. Some firm views about the Online Court emerge from the IR and are set out in the body of this post.

A provisional view is put forward that personal injury claims would be excluded from the Online Court. This seems very likely indeed to be a point on which further representations will be made in the next phases of this project.

Written responses to the provisional recommendations in the interim report are sought by the end of February 2016. Stakeholder meetings will run from March to May, with the final report due before the summer break this year.

The IR comes nearly a year after an Online Court was first recommended by the Civil Justice Council last February and some six weeks after £700m for court reform was allocated to the MoJ, over the life of this Parliament, by the 2015 Autumn Statement. As was the case last February, the idea of the Online Court – with potentially all types of civil dispute in scope – once again clearly has the full support of the senior judiciary. The Master of the Rolls today said “I welcome the proposals on an online court, which I have supported for some time”.

Although much of the 140+ page IR sets outs provisional views, it is striking that Briggs LJ does put forward ‘Firm Views’ about the Online Court or OC. These are set out in full below, with added emphasis.

  • I consider that there is a clear and pressing need to use the opportunity presented by the digitising of the civil courts to create for the first time a court (the OC) for litigants to be enabled to have effective access to justice without lawyers
  • I regard a general value ceiling of £25,000 as a sensible first steady-state ambition for the OC, even if it is necessary to build up to it in stages, and by no means ruling out the possibility of increased jurisdiction if the concept proves to be a success…
  • The OC should have the three stage structure … providing for largely automated, inter-active online triage at stage 1, conciliation and management at stage 2, and resolution by judges at stage 3, by whichever of documentary, telephone, video or face to face process is best suited to each case.
  • There should be very little scope for costs shifting, to include court fees and some disbursements but not legal costs.
  • The steady-state ambition should be to make the OC compulsory for cases within its competence, but only when processes for providing the requisite support to those challenged by the use of computers and online services have been designed, tested and proved to work.

Two other points about the OC are noteworthy. First are the very strong indications that the OC is envisaged as a court that citizens, i.e. litigants in person, can use themselves and without the need for legal representation. This is very clear from the following passage in the IR:

“… a wholly new court for the specific purpose of enabling individuals and small businesses to vindicate their civil rights in a range of small and moderate cases where, at present, access to justice is denied by the combination of disproportionate legal cost … it makes it possible for the first time to provide a court for the resolution of appropriate civil disputes without recourse to lawyers, or with such minimal recourse that their services can sensibly be afforded. This would be the Online Court as I have outlined it …”

Second, is the position of personal injury claims; on which Briggs LJ’s provisional view is that they should sit outside of the OC. He states that subject to two aspects, those arguing generally to exclude injury claims from the OC “currently have the stronger case”. However, he does nevertheless propose that injury claims below any applicable small claims limit should be resolved in the OC and that other injury claims could be dealt with by the OC if the claimant agrees to it. His analysis of these points is set out below.

The need for injured claimants to have lawyers to level the playing field, coupled with the existence of an established online Portal route towards the court which produces a high level of settlements, with a simple Part 8 process for deciding issues of quantum where liability is admitted, strike me as a very persuasive combination.

 My two reservations are these. First, I see no reason why PI cases below the small claims track limit should not be included within the OC. If that limit is raised to £5,000, the OC should accommodate claims below it. That will capture some of the small claims on which the costs are the most disproportionate, all the more so if claims where, regardless of the face value of the claim, the VaR (i.e. amount really in dispute) is £5,000 or less are either included or sent to the OC once that becomes apparent. A very large number of whiplash and industrial deafness cases fall within that bracket, if liability is admitted. Secondly, I would allow claimants to use the OC for PI claims up to the general OC limit if they wish to do so.

The full text of the IR is available at the website here.  BLM will be taking part in the consultation phases of the review and will report on further developments via this blog.

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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