16 January, 2024
It is customary at this time of year to avoid reflecting on the poor decisions the office Christmas party may have brought by scanning the new year's horizon for signs of changes to come, and potentially to come.
2023 was a big year for litigation, most recently with the introduction of fixed recoverable costs for most civil cases coming into force from October 2023. Personal injury proceedings have usually been the Government's scapegoat when it comes to reigning in legal costs, but attention has turned to the civil jurisdiction generally with the aim of introducing more proportionate access to justice. Claims worth £25k - £100k can now be allocated into a new "intermediate track" falling between the fast and multi tracks, and cases will be "banded" according to the issues involved and/or complexity. As is par for the course in such matters, the rules have served only to create an unnavigable mind-field that will keep the courts bogged down with unintended satellite litigation for many years to come. Not least on the list of oddities is the fact that the trigger for inclusion in the new regime in non-personal injury cases is the issue of court proceedings after 1 October 2023, which means that disputes that are hotly contested, but never issued, will remain subject to the old regimes for as long as they may continue.
The new regime goes hand in hand with Master of the Rolls Sir Geoffrey Vos's very public vision of an integrated online civil justice system which is accessible to all, and which aims to reduce the expense and delays of the present approach. It is an admirable and, indeed, necessary goal, but the court system is far from being able to accommodate it. Although it has been digitising over time at a rate similar to the average 80 year old's acquiescence to the merits of mobile telephones, the result is a collection of entirely distinct and messy online systems, with rules so complicated that even lawyers are left scratching their heads. Access to justice for all? Try working out whether your claim falls under Money Claim Online, CE File, the MoJ portal, the DCP, or the CCNBC. Mix into that the removal of the County Court Money Claims Centre, the central depository where all new claims were issued by email in a simple and easy to navigate process, and you have a system that is dead in the water before it has even properly got off the ground.
For that reason, 2024 should (every finger and toe crossed) be the year of integration, that is the beginnings of an amalgamation that should see the old, simple system, merged with the technological advantages of the new but awkward systems. Rather than finding multiple portals to nowhere, litigants or their solicitors should hopefully begin to see a new route to a streamlined, accessible court system, with 24/7 access, uploading of documents, automatic service, and automated trial bundling. If the IT bods can catch up quickly, we may even see forms of AI start to emerge, potentially starting with easy tasks such as production of directions order, but later developing to more complicated matters. There have even been rumblings of AI being used to make judgment decisions in straightforward, low value cases. However, despite its comparatively advanced technological mindset, I think it will be a long while before the construction industry is willing to leave the consequences of a litigation decision in the hands of AI.
Hand in hand with these changes will be a big push towards ADR. Construction has always embraced arbitration and mediation, more so perhaps than most other industries, but we will now start to see enforced, mandatory ADR in all but the most unsuitable of cases. The Court of Appeal recently held, in Churchill v Merthyr Tydfil CBC, that a court staying litigation for parties to engage in ADR is not an infringement of the parties' Article 6 right to a fair trial under the Human Rights Act, provided that doing so did not impact on the right to proceed to a judicial hearing, and that it was proportionate to achieving the legitimate aim of settling the dispute fairly, quickly, and at reasonable cost. The leading judgment was given by Sir Geoffrey Vos himself, paving the way for increased use of forced ADR in many cases.
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