Building ADR in to Civil Justice Reform
The UK civil courts have embarked on a transformative journey that is part evolutionary, part revolutionary and inevitably partly digital. In this brief article I will outline those changes that incorporate longstanding judicial support for ADR but recognise that litigation is not an outcome in itself. They further recognise the important role of ADR in curtailing and limiting litigation and include new mechanisms and incentives that nudge litigants towards ADR processes.
Despite the attractiveness of London and English law as a jurisdictional choice by many non-UK businesses and individuals it has been observed that the core Court processes would be recognised by Charles Dickens if he were to step from the 19th century to the 21st. This has long been recognised though Brexiteer Minister Michael Gove only initiated the present process of reform in June 2015 when he headed the Ministry of Justice. A “creaking and outdated” system was noted (Gove: What does a one nation justice policy look like? Speech given at Legatum Institute 23 June 2015) to fail society’s poorest and that the cost of justice impeded access to justice. Gove’s criticism prompted a wide-ranging review of the civil courts requested by the senior judiciary, the Lord Chief Justice and Master of the Rolls. Lord Justice Briggs’ interim report (Briggs LJ: Civil Courts Structure: Interim Report)was published in December 2015 and final report (Briggs LJ: Civil Courts Structure: Final Report) in July 2016. At the same time and in fact pre-dating the work of Briggs LJ another senior judge, Lord Justice Jackson, had recommended various reforms to the process, law and funding of injury claims. The implementation of those reforms will shortly be reviewed by the UK Government but on July 31, 2017 Lord Justice Jackson produced a further report (Jackson LJ: Review of Civil Litigation Costs: Supplemental Report Fixed Recoverable Costs) recommending that aspects of his reforms relating to funding should be extended beyond injury litigation to all civil cases with a value of less than £25,000 (save for a limited number of exceptions).
Meanwhile “pilot schemes,” reflecting some of the recommendations of both Lord Justices Briggs and Jackson are promoted by way of amendments and changes to the Civil Procedure Rules Committee. All push or prod parties in the direction of ADR whether through mediation or other mechanisms.
The fundamental substantive reform of Briggs is backed by a UK Government investment of £700m to modernise the UK courts and tribunals. (UK Government Press release: Ministry of Justice’s settlement at the Spending Review 2015) The overall aim is “a courts and tribunals system that is just, proportionate and accessible to everyone” through a program of digitising the courts and releasing the civil process from the “tyranny of paper.” The “Online Court” (though widely adopted it is clear that Briggs regrets the initial adoption of this term) will be accessed through a digital portal but adjudications of interim applications will be by the most appropriate medium: paper only, telephone, video or “in person.” Legislation is needed to provide a statutory footing for the new processes and a Courts Bill will be introduced in the present Parliamentary session.
The design of the “Online Court” will offer a radically new and culturally different approach to a civil procedure process based on an adversarial process where the parties control what and how a dispute is defined. The new process will be carefully designed to assist the lay parties to outline the dispute through a carefully designed stage 1 triage process. (Think of this as the “exploration” stage of mediation.) Designing the process via questions and requests for key documents the parties will be steered towards a definition of their case without the need for lawyers. Ownership of the dispute will in that sense rest very much with the parties themselves.
Having “triaged” the claim at Stage 1, the second stage will be for a Court to consider the conciliation of the claim and ensuring that this becomes a culturally normal part of the civil process rather than the option that is formally external to dispute resolution as it is at the moment. (As Briggs notes: the objective is to drop the “A” from ADR.)(Briggs LJ: Keynote Speech for Chartered Institute of Arbitrators, September 2016) This conciliation stage may be by telephone, online dispute resolution, judicial ENE (Early Neutral Evaluation)or private mediation as appropriate to the case. If the case is not by this stage resolved then the matter moves to a Stage 3 determination that will be similar to present adjudication.
As mentioned the “Online Court” (or whatever name it is subsequently given) will be underpinned by legislation. It will initially apply to cases of a value up to £25,000 and the present narrow jurisdiction will broaden to include broader classes of cases and of increased value. April 2020 is the target date for a live full access implementation but as mentioned a “pilot” is to commence shortly using existing Court Rules.
Lord Justice Jackson’s report is a separate piece of judicial work. An initial 2010 report made a series of recommendations for changes to personal injury litigation. Largely fully adopted and implemented since 2013 he considered and recommended broadening a predictable costs regime that has applied to injury cases where settlement is for less than £25,000 (the “Fast Track”). The broadening includes including all cases (with a small number of exceptions) within the Fast Track but creating a new “Intermediate Track” for cases with a value up to £100,000. Again parties will have certainty about the costs associated with this new “track.” Fees payable by a losing party will be assessed against a table that considers settlement stage within the litigation and the case complexity. Most notably for the purposes of ADR there is, for the first time specific allowance for the fees those parties may recover for an ADR process used to resolve the case. Should this recommendation be adopted parties will know that legal fees of up to £2000 will be recoverable where specialist lawyers are used for mediation: certainty offered rather than the discretion that is applied at the moment.
Judicial support for ADR in the UK has been strong and will strengthen. Jackson’s recommendation further assists offering certainty on fees. Briggs’ is the more fundamental change from a laissez faire legally advised adversarial system to one where ADR is “designed in”.
This brief first appeared in the ADR Institute of Ontario's Fall Newsletter on 25 September 2017.