Much has already been said about Lord Justice Jackson’s proposals for success fees, after-the-event insurance, costs shifting and the like, but much less, if anything, about litigation processes, and their impact on costs. Yet it is surely unarguable that a streamlining or simplification of the litigation process would result in a reduction in costs.

Jackson addresses this in chapter 25. He considers the plight of litigants and small to medium-sized enterprises, focusing on claims in the multitrack valued up to £100,000-£150,000 – sums which could be life-threatening to many businesses or individuals, but which, under the present regime, may be dwarfed by the costs for a fully fought action (especially if costs shifting remains). Such an outcome provides neither proportionality, nor justice. Surely few could argue with Jackson’s suggestion that we should expand the remit of the provincial mercantile courts and encourage the draft of a single comprehensive court user.

He suggests that "consideration be given to devising a special streamlined procedure for business disputes of lower value", drawn up by the authors of the Court Guide. We would value consideration by the judiciary or other senior members of the courts, but practitioners should also be consulted, as peculiarly well placed to present the knowledge gleaned from the 93% of cases which do not reach trial.

In this short article, we can do no more than scratch the surface of possible process improvements. We hope, however, that some of our suggestions, which have been deliberately taken on a conservative basis from other aspects of English legal process, could be discussed and explored, to support progress towards the Holy Grail – effective justice with proportionate costs.

Early neutral evaluationThis process does not appear to have been espoused in the Commercial Court, but this may well be because of the large sums involved; practitioners in lower-value cases recognise that both they and their clients could often draw great assistance from an early objective assessment of the relative merits of an action. We suggest this should be made available (but not obligatory) at or immediately after the first case management conference.

Adoption of some Family Court proceduresPrior to a full determination of ancillary applications, there are several court hearings after the exchange of the parties’ statements of means, but before full trial. The first occurs about three months after the institution of proceedings; the second is the financial dispute resolution process; and the third happens a few weeks before the full hearing. All involve a degree of client and judicial liaison.

Lord Woolf, when he first put forward the Civil Procedure Rules (CPR), also contemplated personal involvement of the parties at some interlocutory stages in civil matters. The desire to save court costs and introduce telephone case management conferences has eliminated much pre-trial direct inter-party and judicial contact. We anticipate that a return to some form of face-to-face contact, with a clear and articulated grasp by all parties of current and future costs, overseen by a proactive judiciary, as already happens in other courts, would have a major impact on early settlement.

AdjudicationConstruction disputes have changed considerably since the adjudication process was introduced under section 108 of the Housing Grants and Regeneration Act 1996 (as amended by the Construction Contracts Act). The scope and timing of applications – as evidenced by such cases as Connex SE Ltd v MJ Building Services Group Limited [2005] 2 AER 870 – is far wider than contemplated when the process was introduced. It now appears to be an effective and well-recognised part of the construction lawyers’ arsenal. Surely a similar system, by agreement between the parties if necessary, would be of value in the ordinary civil process?

Summary judgementArguably, part 24 of the CPR has not been a success. Various explanations have been put forward. Human rights issues may have restricted its remit. The double criteria – requiring the applicant to prove both that the respondent has no real prospect of succeeding on the claim / defence and that there is no other compelling reason to allow the case to go to trial – may have reduced its applicability. The risk of costs, particularly on the part of the applicant, on whom the burden of proof nearly always falls, is another factor; the requirement of immediate payment by the loser has an impact that is often more serious from a psychological point of view, affecting the momentum of the parties, than from the financial. Judicial fairness in permitting the parties their day in court in all save the clearest cases may also have had something to do with it.

Viewed from the client’s perspective, the landscape looks rather different. Many would be prepared to accept an 80-90% accurate decision for the investment or risk of a few thousand pounds in legal fees, in preference to a 99% accurate decision for 10 times that sum.

Plainly, in a brief article such as this, one can do no more than raise a few preliminary thoughts and stop, but there is a rich seam to mine, and we would value input and support in seeking to do so.

Mike Williams is Law Society Council member for Bedfordshire and Cambridgeshire, and former council member for civil litigation.

This article first appeared in the special Jackson-focused April edition of Solutions, the magazine of the Law Society's Civil Justice Section. The Section focuses on all areas of civil justice including arbitration, litigation and mediation, and membership benefits include four issues of Solutions a year, regular e-alerts including case law and legislatory updates, and large discounts on a flagship annual conference, other events, Law Society publications including Litigation Funding magazine. Find out more.