There are certain things as a society we really should all care deeply about. Civil justice is one of those things and because it is so important we rely on experts to protect our interests. The Civil Procedure Rules Committee and Ministry of Justice are our appointed experts who are there to protect us all.
However, things have not been going particularly well of late. Civil justice and particularly access to civil justice have been severely wounded in recent years by some truly awful reforms. Reforms over the last 10 years or so are not working. The escalator we are being forced to take is either broken or it moves us further and further away from our intended destination. Whatever the reform has been it has not improved civil justice one iota. That is frankly embarrassing and nobody is accepting responsibility.
So Lady Justice is currently bleeding out yet again, stabbed repeatedly this time in what seems like a poorly planned frenzied attack by a fixed recoverable costs regime which is simply unfit for purpose. The time has come to hold our government to account.
What is sad and somewhat distressing for me personally and for many, many others is that the people who are appointed to protect Lady Justice’s physical health and wellbeing have been found to have made some mistakes here, one of which for example is restricting a litigant’s freedom to contract out of the fixed costs regime. I don’t mind it when mistakes are made; mistakes often lead to improvements. I am fine with that. What I don’t like is when the person who made the mistake doesn’t hold their hand up and accept that they have got it wrong.
This particular mistake, where, if you apply the new rule as drafted, you cannot now agree in your contract to recover your costs in full, will severely impact on everyone, including our very fragile economy. This is despite Lord Justice Jackson in his report actually saying it could not be done without primary legislation. That is very clear in Jackson’s report and I have explained that to the CPRC, the MoJ and the Commons Justice Committee. Lord Justice Jackson got that bit right. He recognised the fundamental importance of that contractual principle and he expressly stated that only primary legislation could ever tamper with it. Yet despite that we have a new rule which takes the choice away when it comes to recovering legal costs and there is no explanation for it or any interpretation of it. We have been told this week by Lord Bellamy that it is 'complex' whatever that means.
On top of all that disappointment is the fact that I do not even have an explanation as to why that step has been taken. Was it intentional, unintentional, a mistake, an unintended consequence, sloppy drafting. Who knows? We certainly don’t. We have not been given the courtesy of a basic answer. We are left guessing. All I can say is that it certainly wasn’t covered in the explanatory note to the SI and it hasn’t been covered in any CPRC minutes that I have seen - although I note July’s minutes are yet to be published.
This point, along with several others, would have been waved through without any questions asked at all had they not been spotted by the brilliant community of litigators out there who could have been utilised through a proper consultation. I find that lack of commentary on such a point and lack of consultation concerning. Everyone in this room should find that concerning even if claims under £100k do not form a part of what you do. Your dam could of course be breached next time and in any event many of your big business clients do business in that space and so you should be concerned for them. What will you advise when they come to you to explain that these rule changes affect a book worth millions and millions of pounds worth of transactions to them? What then?
When CPR amendments are pushed through by governments the judges and lawyers involved in the drafting of those rules need to also be able to step forward to protect the rule of law and to distance themselves from the executive if they need to. That is why the CPRC exists. It is a mechanism to make improvements quickly, at a proportionate cost, but to do so within tightly controlled parameters. It is a check and balance. For me, it should act like the Bank of England does when increasing the interest rate, documenting who was for the rule or against the rule and why, but it doesn’t do that and that frustrates me. According to the rules that govern the CPRC 8 members of the CPRC must sign-off civil procedure rules for the rules to be amended and come into effect and that is it. No reasons need to be given, which is particularly odd for a profession that is built on giving reasons for its decisions. But be that as it may it still gives the judiciary the ability and the power to reject any proposed reforms if they are for example breaching existing laws or harming civil justice in some way, and yet of the 20 members who could do that we do not know the views of any of them. They could be being democratic about it, which is fine, or someone could be dictating things, which is not fine. We just don’t know.
To have a system in place where each appointed member can effectively keep stumm, sign-off rules that should not be signed off in the first place, say nothing about the reasons for their decisions, is manifestly wrong as a democratic process. There needs to be more than a few points made in minutes of meetings by a few of the members. We need to see what each member ultimately thought. I would at least expect the judges and practitioners on the CPRC, as a bare minimum, to state openly what their own views are and confirm those views in writing particularly when they believe something is wrong with a rule change, and that they do not agree with the MoJ’s stance on a particular rule or policy. How can you discharge your duty as a custodian of civil justice if you do not document your own views?
No matter how disabled and injured she could well become Lady Civil Justice will still be here in a thousand years time when we certainly won’t be. We are nothing more than custodians of civil justice, passing through, agreeing to look after her for a while and we have no right whatsoever developing rules we do not have the power to develop. The CPRC should push back and leave that to parliament if a rule doesn’t meet the requirements.
We also do not have the right to draft woefully ambiguous, uncertain rules we fail miserably to explain to the people who will be using them. That’s just as bad. We have failed miserably on this occasion also regarding fixed recoverable costs and also on many previous other occasions and the marker has to now be put down now that this is not good enough. We are tired of treading carefully when things that are this important are going wrong to this extent.
So I ask a couple of questions today about planned reforms. How will the next set of reforms be any different than the last dozen or so? How will they not damage access to justice even more than many reforms have done so already? What magic is about to happen that we have not previously witnessed?
James Perry is chair of the Law Society’s Dispute Resolution Section. This is an extract from his speech to the Society’s Dispute Resolution Conference 2023