Changes may be afoot in the Civil Courts as a number of new initiatives are being progressed which are intended to shake up the way that the Courts do things.
I say "may be afoot" as a number of these intended changes are being met with resistance or problems are being identified during the piloting of initiatives.
This article concentrates on three of these initiatives:-
- the introduction of "virtual" courts;
- new rules to tackle excessive disclosure;
- plans to make mediation compulsory.
(a) The Introduction of Virtual Courts
Approximately two years ago, Lord Justice Briggs introduced the prospect of an online Civil Court for resolving claims of up to £25,000. While various schemes have been piloted, a number have run into difficulties and the latest version being considered is one where there are disputes between two parties involving claims with a value of a specified amount of up to £10,000 (e.g. for unpaid invoices).
Attempts to deal with injury compensation claims and holiday claims online have proved to be less straightforward.
Both The Law Society and The Bar Council have urged the Courts to inform litigants in person of the need to seek professional advice. The Law Society, in particular, is keen that any on-line system should identify appropriate sources of legal advice as part of the process.
Other issues that have arisen with the drive towards greater computerisation of court procedure include problems in helping people who do not always have basic computer skills; and confirming a party's identity when they bring or defend a claim.
(b) New Rules to Tackle Excessive Disclosure
Significant reforms of the rules on disclosure are to be piloted in 2018. This has been prompted as a result of the volume of data in many cases (especially larger claims) increasing to unmanageable proportions.
The new proposal will see the abolition of "standard disclosure" and the introduction of the concepts of "basic" and "extended" disclosure.
"Basic Disclosure" will consist of key documents that are necessary for an opponent to understand the case that they have to meet. "Extended Disclosure" – under which the parties will have to request one of five Models will be ordered by the Court at a Case Management Conference.
The parties to proceedings must seek to agree a draft List of Issues for disclosure. This is intended to provide a fair and balanced summary of the key areas of dispute that are identified by the parties' Statements of Case.
The five Models will range from Model A – "no order for disclosure" to Model E – "wide search-based disclosure"; with various degrees of disclosure in between.
The Court will only order extended disclosure if it is persuaded that it is appropriate to do so in order to fairly resolve one or more of the issues for disclosure.
It will have to be "reasonable and proportionate" having regard to the overriding objective.
The parties will be able to seek guidance from the Court (for example, as to the scope of extended disclosure") at a Disclosure Guidance Hearing.
(c) Will Mediation Become Compulsory?
For many years, the parties to a dispute have had the opportunity of resolving their dispute outside of the normal Court process – by mediation.
If the parties choose this option, an independent mediator will be appointed to try to help them to reach an agreement without the expense of taking the case to trial.
The advantage of mediation over Court proceedings is that if the parties choose this option, they retain control of the process.
Despite this, many lawyers have not "bought in" to the mediation process. Many clients still want their day in Court. Despite measures to encourage mediation, (e.g. threats of sanctions), mediation has still not become ingrained in litigation process.
Making mediation compulsory has been considered in the past and a working party set up by the Civil Justice Council has recommended that this should be considered afresh.
The working party suggests that the Court may have an important role to play in persuading parties who refuse to engage meaningfully with mediation. However, if parties are compelled to take part, it has been suggested that this should be early in the process.
This may be the shape of things to come – although various commentators have cautioned against this on the grounds a voluntary approach to try to find a solution to a problem often creates a better environment to achieve this than a compulsory one.
At present, the jury is out – but the possibility is that in the future, a greater degree of compulsion may prevail.
Conclusion
So, although each of these concepts are designed to save costs; to stream line the litigation process; and to assist parties in resolving their disputes – each in their different ways are under the spotlight.
For our part, any reforms that can limit disclosure or make justice for individuals more accessible are to be applauded. It is just that it may take a little more time to achieve this.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
