In a prescient piece written before Briggs LJ published his review of the civil courts, Peter Glover reflects on 20 years of experience as a district judge.
In August 2015 I completed 20 years of service as a district judge. It seems to me as good a time as any now to look back over those two decades to consider the progress we have made in delivering local, accessible and comprehensible justice for the public served in the county court by HM Courts and Tribunals Service.
After four years working with the much-maligned County Court and High Court Rules, 1999 saw the introduction of the Civil Procedure Rules. Viewed against the high hopes held for them following Lord Woolf’s detailed reports and recommendations, they can be seen to have failed.
Introduced half-baked, but probably necessarily so, it was hoped that they would ‘bed-in’ in use. Even before actual implementation, and in a torrent thereafter, they were subject to amendment and expansion. They were intended to allow wider judicial discretion to do justice in accordance with the overriding objective; to sweep away a century’s worth of judicial precedent; to substitute enabling rules for proscriptive ones and to harmonise High Court and county court practice.
But Woolf could not have foreseen how extreme this range of discretion would turn out to be and the increasing anxiety of judges to save litigants in person from procedural pitfalls. These factors, together with the demolition of pre-existing precedent, tended to make the outcome of procedural disputes unpredictable, possibly to an extent unacceptable to the professions. The recent introduction of CPR 3.1A, confirming that LiPs need different treatment, is not going to encourage practitioners to expect any judicial retreat to a hard line.
The Civil Procedure Rules can be seen to have failed
Woolf had also assumed that government would share his reforming and modernising zeal and that computerisation of basic court procedures would be successfully achieved at an early date, with the paperless court becoming a reality. The former is yet to be achieved, while the latter seems as far off now as it did in 1999.
Perhaps the significant investment in the courts recently announced by the chancellor will kick-start the process, but it does not seem likely that modernisation of local county and family court centres will be a high priority. Indeed, a substantial number will soon be closed, with a view to sale for re-development to recoup some of the promised expenditure.
Perhaps the most significant disappointment of the CPRs has been their failure to contain, let alone reduce, the costs of litigation. From the outset, there were complaints that the regime ‘front-loaded’ costs, no doubt with the good intention that each party would be well apprised of the other’s case well before trial to allow part 36 to work its magic. In multi-track claims this tendency has been exacerbated by the introduction of costs budgeting and management.
It might all have been different had it proved possible to devise a workable scheme for fast-track fixed costs. The imposition of fixed advocacy fees by part 45 was not intended to stand alone. Both before and after implementation, research was carried out to identify appropriate levels of pre-trial costs. I took part in one exercise which, unfortunately, served to demonstrate that judicial assessment was too inconsistent to assist in the development of a fair formula. When it became plain that claimant and defendant lawyers could not agree such a scheme, there was apparently no will to impose one.
By this time, the county courts had been flooded with an avalanche of sterile litigation following the surprising survival by the nascent credit-hire industry of the Giles v Thompson champerty trial, hand-in-hand with, and partly linked to, the exponential increase in the number of low-value personal injury claims brought to trial and funded by conditional fee agreements (CFAs). Fast-track costs went through the roof as the bitter litigation between insurers and the new PI ‘industry’ continued.
That this was not the finest hour for either the professions or the county court judiciary - they must bear some responsibility for the spiralling costs claimed and allowed on summary assessments - is demonstrated by the apparent preparedness of government to legislate lawyers out of this work: an undesirable yet inevitable outcome.
Unhappily, the CPRs have become long-winded and complex, as had the rules they replaced. The emphasis on the overriding objective to do justice must be preferable to constriction by hide-bound authority, but, as I have already suggested, it has not made the judicial process more predictable for professional users or, and just as important, more user-friendly for the LiP. If we are heading for a lawyer-free, electronic, court for all claims of most natures below a significant threshold of value or outside certain subject matter, the rules will have to be re-written, and we will not be so far away from a return to separate rules for lower and higher value claims. This irony will not be lost on any who practise in the county court.
Issues of localism and accessibility have been dictated by financial necessity and expediency. Right from when I started, and to my then-jejune surprise, HMG made a profit or broke even at most court centres on civil work, while having substantially to subsidise family work. Judicial salaries, but not those of district judges, were then paid from central funds and not a departmental budget. Can it be contentious to suggest that the decision by successive governments to make the provision of court services for citizens self-financing, or even, as is now expressly contemplated, profitable, has gravely damaged access to justice?
If our professionally judged courts are too expensive for our cash-strapped 2015 society, it may well be appropriate and acceptable to the public to replace them with something cheaper utilising IT, civil servant ‘judges’ and/or algorithms derived from Q and A input. An eBay-style dispute resolution system has been touted as a potential model, but such all-but-virtual courts are nowhere in sight, while present levels of court fees discourage most people of ordinary means from using the civil or family courts.
In the family court, the numbers of litigants in person steadily increased as legal aid eligibility levels were allowed to fall behind inflation. The freezing and subsequent reduction of legal aid rates discouraged experienced practitioners from taking on family and children work, with a consequential diminution in the quality of such legal assistance as then remained and the preparation of cases for the court. As anticipated, the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act greatly accelerated the trend towards self-representation and it is now something of a happy surprise for me to encounter a represented party.
To have both represented is now extremely rare. The consequences for the county court have been longer hearings, greater delays for all users and judicial time lost in assisting litigants to deal with the litigation process. I have written about this previously.
Hearings have also been lengthened by reason of the obligation placed on district judges, who sit without clerks, to ensure that litigants in person leave court with, if not the finished order, then at least a note of the main terms. This would previously have been done by the parties solicitors or counsel.
It is now something of a happy surprise for me to encounter a represented party
For another example of circumstances where the judge may feel obliged to take on the role of the absent solicitor, consider the position where financial remedy applications are settled by litigants in person, for example at a financial dispute resolution hearing or where they submit consent orders for approval. To what extent can or should the judge assist the parties to draft the final orders? If s/he declines to help, how is a properly drafted order going to be finalised for sealing?
In both the family and civil jurisdictions, there is presently a clear ‘justice gap’ which district judges are all but compelled to fill, being the only legal professionals involved. This adds to the pressure of the job and can place judges in an uncomfortable and inappropriate role.
The number of district judges in post has increased by well over 200 since I was appointed in August 1995. A significant number of the present complement were appointed around the same time and many have already served or will soon have served 20 years, being the maximum recognisable period of service for pension provision under the Judicial Pensions and Retirement Act 1993. Many readers will have noticed that recent retirements at their local courts have not resulted in the appointment of replacements, either in good time or at all.
This is too common an occurrence for it to be the case that at all courts affected the workload has diminished to render that judicial position superfluous. The impact on the remaining judges has been to increase already heavy workloads, resulting in yet further delays for court users, an increased risk of ill-heath for those judges and savings in salaries, pension and national savings contributions for HMCTS.
I assume that, from their point of view, this is mere happenstance, but the fact of the matter is that the number of retirements is going to increase and this problem will be exacerbated. Perhaps the proposed redeployment into the county court of some 26 presently under-employed Employment Tribunal judges, to deal with civil work only, will help once they have completed their intensive two-day induction training and five days sitting in.
While it may prove to be the case that there are grounds for optimism so far as all users and officials, including judges, of the county court are concerned, I am personally sceptical, but hope it is only my myopia which prevents me from seeing the bright new horizon.
Peter Glover is a district judge at Dartford County Court and Family Court