Lord Chief Justice: modernisation, resolution and mediation.
Lord Burnett of Maldon, the Lord Chief Justice spoke last Thursday 7th June at the annual BAILLI lecture now renamed in honour of the late Sir Henry Brooke about the Court Modernisation programme. The headlines have been about video evidence in criminal trials, whether an interpreter will be needed as simultaneous translation improves, whether the predictive powers of AI will resolve cases, about the widening of access to justice as the Courts digitalise as well as the benefits and efficiencies (and of course “challenges”) that follow a major programme of reform.
Other parts of the speech have been less well covered by the press but there are numerous parts of that speech that are important for civil process and mediation which when linked with other speeches and reports confirm a significant shift in the approach of the judiciary to civil litigation.
Lord Burnett noted with approval the observation by Briggs LJ in his Interim Report on Civil Courts Structure that the court rules “have too often been designed by lawyers for lawyers and not from the perspective of litigants.” End users want a means to resolve their disputes and the purpose of case management has fundamentally changed. As Briggs LJ re-iterated in a speech on 24 May at the Better Resolution of Clinical Negligence Disputes Conference that case management now focuses on how to achieve resolution of the case rather than to manage the matter to a trial.
It was also noteworthy that the British Columbia Civil Resolution Tribunal (CRT) was mentioned 3 times by Lord Burnett in his speech reflecting his “admiration for what has been achieved in providing a simple and effective technology based process which enhances the rule of law and provides wider access to justice.” Readers should be aware that the CRT includes, as part of its process a mandatory “facilitation” (ie ADR) stage that parties must use before a case is certified for a final stage adjudication.
The CRT provides the template for the civil Online Court presently being piloted in England and Wales and in that respect it is well worth quoting Lord Burnett in full as he considers the future development of that process.
In the civil sphere, our justice system will move further in the direction indicated by the Civil Justice Council’s Online Dispute Resolution Working Party. As technology continues to develop we will undoubtedly see a version of the Council’s three stage approach to the case management process implemented. We will see online evaluation, followed by online facilitation and its use of assisted negotiation and mediation, before an online adjudication stage.
Thus there is a clear direction of travel established: resolution is the anticipated outcome and mechanisms that support that will be promoted. Within that context the Civil Justice Council (CJC) Consultation on ADR is expected to make its final recommendations by the end of July. It will be remembered that on launching the review the Master of the Rolls, Sir Terence Etherington, confirmed that “it is an ideal time to look in detail at how the potential for ADR can be maximised.”
The CJC report will be considered as the LASPO review will also be considering the recommendations of Jackson LJ to extend the Fixed Recoverable Costs regime and to introduce an intermediate track for all cases between £25,000 and £100,000 which includes specific costs allowances for ADR / mediation.
And finally – the march of ADR is not waiting for pilots, recommendations and reports. With effect from April 30th this year the Professional Negligence Pre-Action Protocol was altered to require the initial letter on all cases to consider adjudication, propose 3 adjudicators or give good reasons whey they do not wish to refer the matter to adjudication.
The speech by the Lord Chief Justice considers other aspects of the reform programme (in particular the issues for the Criminal Courts) but as far as the civil process is concerned it confirms a pathway that has become increasingly evident: that digitalisation is but a tool that will help to provide an efficient and effective route to resolution of disputes. Trial and the civil process is not an end in itself and ADR and mediation are amongst the addtional tools that will be promoted to help parties achieve this outcome. Some of the details are yet to be filled in but the destination is clear.