Ministers are looking again at the idea of a unified civil court service. Jon Robins assesses the pitfalls and possibilities

There is nothing new about the recent proposal to unify the rather disparate civil court system – it was first mooted in 1869 by the Judicature Commissioners and most recently endorsed by Lord Woolf in his ground-breaking review of the civil justice system in 1999.


This month the government has unveiled its own plans in a consultation paper tentatively titled, ‘A single civil court: a good idea?’ Why have ministers decided to tackle such a potentially huge overhaul of the legal system now?


‘The idea of unifying the civil court jurisdictions has been gathering momentum for many years,’ acknowledged the civil law Minister David Lammy this month. His proposals talk of the exercise as being ‘the next logical step’ after the Woolf revolution and Sir Jeffery Bowman’s review of the civil branch of the Court of Appeal in 1996. ‘We want to see how reducing the complexity of the court system, creating a more modern structure for users, could improve access to justice and see, for example, whether there could be savings,’ Mr Lammy said. ‘Would it be easier to manage cases, ensure that disputes are resolved more quickly and at reduced cost?’


Litigators are sufficiently aware to realise that the pursuit of cost efficiencies would be a persuasive factor for ministers, but they hope that any future reform is not going to be all about cutting costs. ‘We would like to establish whether these proposals are allied to any thinking in government elsewhere that they are going to rationalise court centres,’ comments Graham Huntley, president of the London Solicitors Litigation Association (LSLA) and commercial litigation partner at City firm Lovells. ‘If that’s the case we would prefer to see it up front rather than hidden behind the curtain of this paper. Ministers may think that the volume of litigation in the civil courts is falling and there’s justification for cutting back, and there are enough indications that the DCA wish to rationalise court centres.’


Another practitioner is also concerned. ‘I would be amazed if they saved costs by making a change unless they did close down courts,’ reflects Peter Ashford, a partner at the Kent-based firm Cripps Harries Hall. ‘They have been closing down county courts and they will no doubt continue doing that. If part of the rationale behind any change is bringing clarity to the public’s mind about the court system then, equally, from the public’s point of view what they want is access to a local court as opposed to having to troop half way across a county.’


The DCA consultation puts forwards three models of reform. Firstly, there is the ‘do nothing’ option retaining the status quo, then there is the nuclear option of scrapping the county courts via primary legislation and, lastly, there is streamlining the current system using existing legislative powers.


Ministers are consulting on four big questions: would a single civil court benefit users and the judiciary? Should there be a single family court that hears all family cases? Would a single civil court, with the removal of geographical restrictions, improve access to civil justice? And should the existing judicial structure remain the same in a single civil court?



While practitioners might be nervous about any hidden intentions lurking behind the proposals, most lawyers accept the prima facie case for reform of a court system that has developed in an anarchic manner over the years. ‘It does present a picture of unnecessary complexity,’ reckons Philip Reed, a commercial partner at Norton Rose and secretary of the Solicitors Association of Higher Court Advocates.



Mr Reed welcomes a review of the arrangement of the three divisions in the High Court – Chancery, Queen’s Bench and Family – and their uneasy co-existence with the specialist courts. ‘The distinction between work in the Commercial Court and in the Chancery Division is not satisfactory because this firm has, for example, insurance litigation dealt with in Commercial Court and some banking litigation dealt with in the Chancery Division,’ he says. Mr Reed argues that practitioners want a consistent approach throughout the system. ‘You do actually get significantly different legal cultures especially in attitudes towards remedies,’ he continues. ‘You get a separate body of judges and practitioners in the Chancery Division and in the Commercial Court and they can be quite protective of their patch. I don’t think that’s healthy.’


This is a consultation where little is ruled in or out – for example, the issue as to whether the family proceeding courts are in or out is left open. Family law practitioners are taking the opportunity to make the case for a unified family court outside of the mainstream civil courts.


‘It’s not so much that the present situation is causing problems as the fact that there’s probably a much better way of doing things,’ argues Andrew Greensmith, national vice-chairman of Resolution (formerly the Solicitors Family Law Association). ‘What the consultation paper has highlighted is that the present court system is almost dysfunctional. It has developed by way of evolution rather than by design.’ Resolution’s approach is to push for a dedicated family court with more scope for specialised judges and dedicated court buildings.


Christopher Butler is a family partner at City-based law firm Speechly Bircham and sits as a deputy district judge at the Principal Registry of the Family Division in London. He agrees that the review could be an opportunity for ‘a dedicated system that is purely related to family matters undertaken by professional people who deal with the family law day in and day out’. Most judges who handle family cases, outside of the Principal Registry, deal with a mixed bag of generalist civil work.


Says Mr Butler: ‘Family law is expanding every year because of the growing divorce rate and the new Civil Partnership Act is going to open up a whole new area of work as same sex-couples will have to use the courts in the same way as heterosexual couples. You could end up with a huge civil court organisation which becomes too difficult to manage.’


Commercial practitioners fear they will lose their access to experienced judges in any future shake-up. ‘The big X factor about unified courts is whether we are still going to get specialist judges doing specialist work,’ says Cripps’ Peter Ashcroft. ‘If not, it would be a huge retrograde step.’


John McDonnell QC, head of Thirteen Old Square, takes the view that unification will either be a superficial re-branding exercise – and, therefore, pointless – or else it will dangerously undermine the quality of justice on offer to litigants. ‘The High Court concentrates the best judicial talent and if we are going to retain that then this is all just semantics,’ he says. ‘If we aren’t, then we are diluting and ultimately losing something very special.’


Mr McDonnell places the latest consultation in the context of a policy of relieving the burden on High Court and Court of Appeal over the past 20 years by driving cases to the regions. ‘All the important work will still be done in London, but what might happen is people are pushed out into court centres a long way from London for the initial stages of cases and then end up in front of a High Court judge in London.’ He argues that such a development would be ‘dogmatic’ and ‘wasteful’, saying: ‘It is a recipe for interlocutory proceedings to be bungled because they are going to be handled by provincial agents. A solicitor isn’t going to travel 200 miles for a half application in front of a district judge.’


The mechanics of unifying the courts suggests an overhaul of the ‘ticketing’ system whereby judges with expertise in specialist areas are given the authority to deal with specialist work. ‘I don’t think you can argue that post-Woolf unification isn’t the right way to go,’ argues David Greene, a partner at City firm Edward Coe. ‘But getting a new system right is the problem. You need a workable and predictable system post-unification, which from a practitioners’ point of view is fully understandable. The question is: will we understand it afterwards?’



The Master of the Rolls, Lord Phillips, and the Lord Chief Justice, Lord Woolf, are both supporters of a unified civil court (see [2004] Gazette, 1 July, 1). Speaking to the Gazette last week, Lord Phillips explains: ‘Increases in the weight of work leads, inevitably, to demand for more High Court judges. Increasing the size of the High Court Bench risks diluting the standing of the High Court judges.



‘Unification would give flexibility in allocation of cases to appropriate judges. High Court judges can be reserved for the most important cases. The number of High Court judges would govern those cases heard at this level rather than vice versa. Thus the corpus of the High Court judges could be protected from further expansion and the standing of the High Court judge preserved and enhanced.


‘The ticketing of judges may be extended throughout the levels of judiciary, providing better opportunities for judges to use the types of specialised legal skills that brought them to the bench. This strengthens the collective judiciary, may improve judicial career prospects, and provides a better service to the public.’


Many lawyers are struck by the apparent scale of the review. ‘It feels like the single most comprehensive review of the civil justice system since the Judicature Act 1973,’ says Norton Rose’s Philip Reed. ‘When you consider the interval between then and now, I think it is high time we looked at it again.’


Jon Robins is a freelance journalist