Last July I was asked by the lord chief justice and the master of the rolls to carry out a review of the structure of the civil courts, with broad terms of reference, and a brief to deliver an interim report by the end of 2015.
After an intensive period of research, including visiting 14 regional hearing centres in September and informal ‘Chatham House’ consultation with stakeholders (including the Law Society and many professional groups), I delivered my interim report on Christmas Eve. It was published in January.
By the time you read this I will be most of the way through the second stage of my review, against a deadline for a final report this July. The time for written responses expired in February, but a process of oral consultation, at public and stakeholders’ meetings in and outside London, will continue until the end of May.
I have already received a great deal of written and oral feedback, for which I am grateful. I acknowledge that the time frame is tight, but this is necessitated by the speed of advance, in parallel with my review, of the HMCTS Reform Programme, over which I have no control.
My interim report is accessible via the judiciary.gov.uk website. I encourage litigators who have not yet read it to do so. There is a summary of the key issues in chapter 12.
The starting point of the Reform Programme and my review is that the legal professions make a unique contribution to the quality of civil justice, and therefore to the rule of law, in England and Wales. They are a main foundation of a civil justice system which, as I acknowledge in my interim report, provides a quality of service unbeaten anywhere in the world for those who can afford it.
However, a main theme of my report is the shocking fact that, following the virtual withdrawal of legal aid, civil justice is quite simply not available to the majority of ordinary individuals (or small businesses) in relation to disputes which, although moderate or small in money terms, are of course extremely important to them.
This is because the legal costs which have to be incurred and risked are disproportionate to the value at risk, and because the culture and procedure of our civil courts make litigating without lawyers very difficult, and potentially unfair when the opponent is legally represented.
This does not merely affect the relatively poor who simply cannot afford legal representation, but also the many who sensibly regard going to court as a misuse of their money, because the costs payable and at risk soon outweigh the value of the matters in dispute.
The decision by government (in an age of austerity) to invest in digitising courts, to the point where litigation becomes paperless by 2020, creates a once-and-for-all opportunity to put this right. The creation of an Online Court will enable civil disputes to be litigated by people without lawyers, in those areas where (under the existing regime) the cost of using the service currently offered by lawyers is disproportionate to the amount at stake.
The figure of £25,000 has been provisionally identified as the amount at stake below which that disproportionality usually occurs. However, this will not apply to all areas or types of case within that financial limit. For example, complex cases, personal injuries (including clinical negligence) and possession of homes will probably not be included. Non-clinical professional negligence may be another. Chapter 6 of my interim report gives a detailed explanation of the thinking to date, and the issues still to be decided about the Online Court. Nothing is set in stone as yet.
The Online Court would be designed to have a permeable membrane between it and the County Court, precisely to enable cases started in the Online Court to migrate to a more traditional (but still paperless) forum wherever the complexity or importance of the issues makes it appropriate.
It is not, incidentally (as some have implied), intended to be a court without judges, or a court where matters in dispute are to be determined automatically by some algorithm embedded in a computer (or by a civil servant).
But it is a court where the basic problem facing ordinary people, namely turning their heartfelt grievances into something formulated in legal terms, and enabling them to identify and present their evidence, is capable of being addressed electronically and cheaply, so that their opponents know the case to be met, and the court is equipped at the earliest possible stage with the materials necessary to decide it justly.
The Online Court will also offer information resources for users, and signposts to further advice on whether their concern is one that is best resolved through a court process or by other means.
It is also to be a court where, for the first time in civil litigation, mediation or other ADR would become a culturally normal (though not compulsory) part of the court process, rather than just a privately available alternative to going to court.
It should not be thought that, merely because the Online Court may be designed in a way which enables people to litigate without lawyers, lawyers are intended to be excluded from it.
On the contrary, such a design should encourage solicitors and barristers to provide unbundled and more affordable services to those thinking of using the Online Court.
Litigants (whether as claimant or active defendant) will still benefit from focused, affordable advice at the outset. And there will be many cases where some professional representation, for example cross-examination at a hearing, will be well worth the litigant paying for, even if the current proposal to use the small claims costs regime in the Online Court means that they would not be able to recover legal costs from their opponents, even if successful.
It may be possible to build in a small element of fixed recoverable legal costs to encourage litigants to obtain early advice on the merits from a qualified lawyer, and some assistance at trial in appropriate cases.
I am aware that the solicitors’ profession is trying to develop unbundled services of this type, and I appreciate that this is no easy task. At the same time, the bar is seeking to develop its direct access model.
My hope is that the reforms being considered will encourage and enhance both those welcome developments, so that qualified legal services will become available to an ever-widening proportion of those ordinary people and small businesses for whom access to civil justice is, at present, simply not a reality.
Briggs LJ will update solicitors on his interim review of the civil court structure at a free Law Society event on 9 June. For registration details see the Law Society website