THE LORD CHIEF JUSTICE’S REPORT 2014: CIVIL JUSTICE

The Lord Chief Justice’s Report for 2014 is available online.  It covers many aspects of the judicial system. Here we look at the report in relation to civil justice,

THE REPORT

On civil justice the Report identifies 5 key areas:

1. Control of the costs of litigation.

2. Litigants in person.

3. Business litigation – domestic and international.

4. Move of the county court at Central London.

5. Further proposals.

IN BRIEF

  • It is not understood why competition has not reduced the costs of litigation.
  • Cases are taking longer because of litigants in person. Further reforms are necessary.
  • Steps are being taken to ensure that the courts in England and Wales remain at the forefront of commercial dispute resolution.
  • The move of the county court at Central London should make for much more efficient dispute resolution “once the administration of justice has been modernised”.
  • A working part “Delivering Justice in an Age of Austerity” has been established and other steps taken to improve access to the civil justice system.

THE REPORT

“2. Civil Justice

Work in the civil jurisdiction has been busy with the creation of the single County Court in April 2014
and the coming into force of the Jackson Reforms in respect of civil litigation costs. Four matters are
highlighted here.

Control of the cost of litigation

There can be no doubt of the urgent need to control the cost of civil litigation. It is becoming
increasingly difficult for citizens to afford the cost of retaining lawyers in circumstances where legal aid
has never been available. There is also substantial concern amongst businesses that the cost of dispute
resolution is often disproportionate to the amount involved. The Jackson Reforms are playing a vital
role in trying to ensure that there is access to justice for the citizen and access at a proportionate cost for
businesses. However, it is becoming increasingly clear that steps must be taken to examine why the cost
of legal services is increasing despite the significant change in the legal market and the great number of
providers of legal services. Competition should have reduced cost significantly, but this is not happening.
Another cost of litigation is the level at which court fees are set. The judiciary provided a detailed
consultation response on the Government’s proposals to increase a wide range of primarily civil court
fees, and also introduce the concept of above-cost enhanced fees for certain commercial proceedings.
A number of reservations were expressed in the response. While court fees often represent a fraction of
litigation costs, they do have an effect, particularly on litigants in person.

Litigants in person

The escalating cost of using lawyers in civil litigation in circumstances where legal aid has never
been available has coincided with the major legal aid reforms under the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 (LASPO) which took effect in April 2013. This has resulted in a
very significant rise in the proportion of litigants in person. This increase together with the time taken
to control the costs of litigation through cost budgeting has placed a considerable strain on the civil
justice system.
Although litigants in person have been a feature of the tribunals since their inception at the beginning
of the twentieth century, outside the jurisdiction of the small claims procedure they have not been a
common feature of the court system. Although litigants in person are not in themselves “a problem”
for the courts, the issue for the courts and the Government is that the system has not developed with
a focus on unrepresented litigants, and there is now an unprecedented increase in their incidence. The
judiciary’s view, based on inquiries it has made albeit so far unsupported by full statistical evidence, is
that cases are consequently taking longer.

Cases which may never have been brought or would have been compromised at an early stage are often
fully-contested, and the take up of mediation and ADR has reduced. The judiciary is actively taking
steps to provide litigants in person with access to justice in a proportionate manner. The steps taken
include schemes in the Queen’s Bench and Chancery Division to provide pro bono help and simplified
guides to litigation. The help that the courts have received from the Personal Support Unit and Citizens
Advice Bureau has been immense. As discussed later in this section, the judiciary looks forward to
further reforms to address this significant issue.

Business litigation – domestic and international

Business disputes are heard in the Commercial Court, the Technology and Construction Court and
the Chancery Division.They serve the domestic and international markets and make a very significant
contribution to foreign earnings of the legal sector. The services these courts provide will improve as a
result of the delivery of a state of the art IT system (based on systems in use in overseas jurisdictions)16.
Steps are also being taken to try to harmonise processes across these courts. Good progress has also
been made in the Chancery Division in implementing the recommendations in Lord Justice Briggs’s
Chancery Modernisation Review.
A judge-led working group was established in July 2014 to ensure that the needs of the financial
markets were being properly addressed by the courts. As the Lord Chief Justice explained in his Mansion
House speech, there is strong international competition for dispute resolution in the financial markets
of the world, and it is essential that the justice system of England and Wales remains at the forefront.
Move of the county court at Central London
In the major cities outside London, the High Court and county court have for some years worked
together from the same building and thus have been able to provide greater flexibility in the
management and trial of cases. This flexibility should now be available in London as in May 2014 the
county court at Central London was co-located with the Royal Courts of Justice. This will make for
much more efficient dispute resolution in London, once the administration of the county court has
been modernised.

Further proposals

The Lord Chief Justice, in a speech to JUSTICE in March 2014, urged radical thinking about the
future shape of the justice system, to enable courts and tribunals to continue providing fair and impartial
justice within the funds made available by the State, and in a way that citizens can afford19. Since then,
JUSTICE has established a working party entitled “Delivering Civil Justice in an Age of Austerity”, and
the UCL Judicial Institute has held seminars at which ideas for change have been debated. The judiciary
looks forward to considering the recommendations from JUSTICE and the UCL Judicial Institute, as
the judiciary continues with its own work to improve access to civil justice.”

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