London remains the premier jurisdiction of choice for dispute resolution. But how long will that continue and what developments in litigation are likely as we head towards the Brexit door?
Since Harry Woolf started his work on reforming the civil process, dispute resolution has been in constant flux. If anything, change is gathering pace as we seek an accessible, modern civil justice system for individuals, SMEs and international litigants.
The past 20 years have shown that it is difficult to predict all outcomes – and that change should be approached with caution. Having sat on the original Woolf Civil Procedure Rule Committee, I recall hopes that reforms would make litigation simpler and cheaper. They did the opposite. The initial Jackson costs reforms only served to add another complex and expensive procedure in the name of saving costs.
Brexit: The procedural effect on domestic litigation will be limited, so long as a sympathetic deal is done. Absent a deal and the effect could be substantial.
The Withdrawal Act will bring into effect all standing legislation from the EU and its jurisprudence. So, for instance, Rome I and II on applicable laws will become domestic legislation. Of more concern are the reciprocal arrangements with the EU in civil justice. The Brussels Regulation (recast) provides essential certainty on jurisdiction and the process for enforcement. The regulation will go on Brexit. The government has committed to joining ‘at least’ the older Lugano Convention but that depends on agreement being reached with the European Economic Area. The Brussels Regulation is, however, just part of a much broader picture including many other jurisdictional arrangements, such as the Motor Insurance Directive, the Package Travel Directive and Markets in Financial Instruments.
Absent agreement on these arrangements, the chilling alternative is set out in a recent missive from the European Commission: Notice to Stakeholders on Civil Justice / Private International Law. If that were in prospect, litigators may spend the year brushing up on pre-1972 law and bilateral agreements.
Brexit should have little effect on arbitration and indeed is likely to drive clients to the certainty of arbitration that comes with the New York Convention. London is likely to remain a jurisdiction of choice – but litigators will be driving home the message to avoid any confusion as to the effect of Brexit.
Disclosure: Litigators recognise that our procedural rules have not kept pace with changes in soft media and communications. The LSLA has been working with practitioners and the judiciary to seek to close the gap between the modern world and procedural rules that bear the hallmarks of a Dickensian world of quill and paper. Even smaller claims can be buried in electronic disclosure that bears no proportionality to the issue or amount in dispute. In larger claims disclosure can be overwhelming, with hugely expensive disclosure platforms a must for the millions of documents that may be disclosed.
Significant reforms of the rules on disclosure are to be piloted in 2018. A working group chaired by Gloster LJ has launched a two-year scheme, in the form of a draft practice direction, at the Business and Property Courts in the Rolls Building, and in Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool. The pilot will start next year subject to review and approval by the Civil Procedure Rule Committee. The consultation on the draft practice direction closes on 28 February.
Costs: Plus ça change. Despite the endeavours of the judiciary and practitioners, the cost of litigation has gone up and up. Various decisions by the courts and the Jackson proposals for fixed recoverable costs seek to reverse the trend, but it remains to be seen how successful those moves may be. Fixed recoverable costs remains the most contentious costs issue to be implemented over the coming months. Jackson LJ soon retires (70 still seems far too young) but will undoubtedly leave a legacy of his version of fixed recoverable costs for litigators. This mainly affects smaller claims, but the pilot project for claims up to £250,000 could mark the beginning of a wider-ranging regime that would apply to the vast majority of claims.
LASPO: Now under review by the government. The act introduced the Jackson reforms but litigators expect no changes there. The most likely changes coming from the review are, hopefully, in the scope of legal aid.
Court digitisation: The implementation of the Briggs reforms in creating an online court (Online Solutions) might be thrown into doubt with the recently reported substantial cuts to the Ministry of Justice budget. Briggs and the MoJ often referred to the funds for the online court as ringfenced. But with the criminal courts having priority and amid continuing austerity, stakeholders might question how sound the ‘fence’ is. Like fixed recoverable costs, the online court deals with smaller claims but the digitisation process is seeing some success in the wider court system. In particular, the Rolls Building introduced electronic filing earlier this year – and that seems to have worked relatively well. Watch out for more.
AI: The AI revolution asks whether we need lawyers at all, particularly in seeking to foresee the outcome of litigation. Some third-party funders are starting to use predictive algorithms to give some guidance on funding. This is only likely to increase. Robotics is also making its way into the litigation market to replace humans in repetitive processes. Litigators are always looking at ways to cut costs. AI and robotics are here to stay and litigators will be at the forefront of their application.
ISDS: The dispute resolution process for international investors is being reviewed by the UN. The arbitration procedure, including under the Washington Convention, is hugely controversial. The UN is examining the workings of the system and may well propose an international court to replace or supplement the current secretive arbitration process.
David Greene is senior partner, and head of litigation and group action litigation at Edwin Coe; and committee member of the London Solicitors Litigation Association