Partner Tom Snelling offers a commercial perspective on access to justice within the civil courts system, and considers the potential impacts of third-party litigation funding and negotiated dispute resolution (NDR).
Tom Snelling's article was published in the The Law Society Gazette, 10 May 2024, here. Tom Snelling's article was also published in the Gazette's print edition that week.
Civil litigation costs have long caused concern about access to justice. As the former Lord Chief Justice put it: "Our system of justice has become unaffordable to most". In commercial cases, the question arises who the 'most' are, and how best to meet their access needs?
The Commercial Court regularly hears complex cases between sophisticated litigants fighting over sums in the billions. Whether the overall costs of such litigation is proportionate needs to be measured against the money, and reputational impacts, at stake. The litigation analogy here is open-heart surgery rather than a trip to a GP: clients in that position understandably wish to invest in highly specialised litigation practitioners before scalpels are let loose.
These disputes also often engage extensive disclosure. This has been revolutionised by the Courts and technology in recent years, but will continue to need to keep pace with growth in the amount of data that modern cases engage (well beyond emails into tweets, WhatsApps and the panoply of ways that business people now communicate and leave data footprints).
As AI algorithms transform data deployment in civil cases, technology continues to improve efficiency and access to justice. Smart processing and analytical tools are routinely used by litigation boutiques in particular to locate relevant documents, harnessing context, sentiment, and complex relationships within data. But ensuring cost-effective access to justice is not always so revolutionary. A continued focus upon, and government funding for, further training of staff supporting judges could help ensure the courts' ongoing ability to deliver the service levels needed to remain preeminent in the competitive world of international disputes.
Effective remote access that allows international clients to follow their cases is one important example. In a different context, the Julian Assange extradition hearing in February this year suffered from "extremely regrettable" poor audio quality. The importance of justice being seen (and heard) to be done was reflected in a senior judge commenting: "The order we made that remote access should be granted to the many hundreds of people who wanted to observe this hearing was an important one. It had at its centre this court's commitment to transparency and open justice".
Timely access to justice is another issue. Lead times for hearings depend on diverse factors. Some risks of delay are unavoidable despite the sophisticated resourcing and contingency planning implemented by Judges and court staff. Some are geopolitical – for example, Court time taken up by the litigation consequences of the pandemic, Russia's invasion of Ukraine, or Brexit. Others may arise from simultaneous 'mega cases' – a problem which the Commercial Court successfully managed last year. This isn't simple Jenga when those cases (rightly) have allocated judges with resulting impacts on judicial availability. For example, in the recent Mozambique 'tuna bonds' litigation, involving my firm, there was a wider impact on listing beyond a High Court Judge being focussed on an 11-week trial. Numerous case management conferences, urgent applications and pre-trial review issues were also in play.
How else can court access and commercial litigation costs be managed and backlogs avoided? 'Negotiated dispute resolution' may help. NDR is now such a central part of commercial litigation that it is no longer 'alternative' dispute resolution. Courts have powers to order a stay of proceedings and compel NDR. But Judges are often alive to the fact that certain large scale cases before them may only be capable of resolution by way of judicial intervention. Fairly, some business people might prefer having to justify to their Board and investors litigation outcomes imposed upon them, rather than negotiated by them. Mediation in particular can be an effective means of avoiding trial, but there are also cases where it can feel like an expensive rehearsal for an inevitable day (or many days) in Court.
Increasingly, small individual cases that cannot be brought cost-effectively are being bundled into large group actions by litigation funding. An example of their staggering size, and how the civil courts are taking dramatic steps to manage them, is the diesel vehicle NOx emissions group litigation. Last December, the President of the King's Bench Division handed down a judgment stating that the scale of these cases is unprecedented, with over 1 million claimants and 1,500+ defendants. She was acutely aware that, without active case management, the enormous potential costs of this litigation could become disproportionate to the sums involved or the sums – if any – ultimately recoverable. The Court is mindful of the risk of these cases, if left to take their own course through the court system with no common management strategy, placing an unacceptable burden upon the Court's time and resources and significantly to affect the ability of other litigants to have access to the civil justice system.
This judgment alone demonstrates how acutely aware the civil courts are of the need to try and ensure that even in the largest group claims, costs are proportionate to what, if anything, is recovered by any individual claimant. This is a hotly contested issue in that litigation fuelled by recent headlines like: "Furious car owners say they have been 'ripped off twice' by 'greedy' lawyers and accuse them of 'daylight robbery'". This also reflects a dramatic increase in media (and public) interest in litigation funding after its role in the Horizon proceedings was brought into our living rooms by ITV's "Bates vs The Post Office".
This gets more interesting in light of the announcement in late April that a Civil Justice Council working group is to review whether third party litigation funding currently delivers effective access to justice. The group (which includes Mrs Justice Cockerill, formerly the Judge in charge of the Commercial Court) will look to provide an interim report by the summer of 2024, and a full report by the summer of 2025.
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