ENSURING ACCESS TO JUSTICE IN THE 21ST

CENTURY

25 April 2016

Law Tripos Part II

Word count: 11,953

Aya Kawawa-Beaudan

TABLE OF CONTENTS

Introduction

Chapter 1: Access to Justice Denied1. Introduction 2.012. Access to Information in an Era of Austerity 2.033. Simplification of Civil Proceedings 2.064. Active Case Management 2.095. Conclusion 2.21

Chapter 2: Jackson Reforms: In Search of Proportionate Costs1. Introduction 3.012. Costs Agreements 3.023. The Elephant in the Room 3.084. Revision of the CPR 3.11

Chapter 3: Modernising Access to Information: Radical Reform at the Pre-TrialStage

1. Introduction 4.012. Dispute Avoidance 4.033. Dispute Containment and Commencement 4.074. System Development 4.105. Ensuring Access to Justice Across Digital Divides 4.15

Chapter 4: Attempts to Redesign Fair, Efficient, and Affordable Civil Proceedings1. Introduction 5.012. IT Investment and HM Online Court 5.023. Rethinking Conventional Trial 5.10

Concluding Remarks

Bibliography

Table of Cases

INTRODUCTION

1.1 Access to justice is a fundamental constitutional right and a cornerstone of therule of law, without which individuals cannot secure the remedies whichmake their rights more than illusory.1 Effective access to justice right requiresboth legal content and legal procedure to be readily available to court usersirrespective of their wealth, and it is clear that English civil procedure fails tosatisfy this test. Legal content is inevitably complex, but its presentation inover 7,000 pages of various cross-referenced resources makes it difficult for alawyer, much less a lay-person, to comprehend. Additionally, uncertaintysurrounding the case management of several key aspects of litigation(particularly costs and costs sanctions) makes the costs of litigationunpredictable and encourages satellite litigation. Nevertheless, rising legalfees and the disappearance of legal aid have forced an ever-growing numberof litigants-in-person to grapple with legal content. Although access to justicedoes not necessarily require access to lawyers unless the circumstances areexceptional,2 unrepresented individuals inevitably struggle to navigate asystem which is designed for lawyers. In particular, legal procedure is oftenarchaic and formalistic. The solutions, particularly in regards to self-represented litigants, are ‘to get them lawyers’, ‘make them lawyers’, or‘change the system’.3 Austerity makes the first option impossible and thenecessary complexity of law and fact make the second impractical, leavingonly the third.

1.2 The inaccessibility of legal content and procedure will be discussed inChapter 1. In particular, the lack of clear guidance and adequate resources forjudges to use their case management tools predictably is lamented, as is themisallocation of case management tasks. In Chapter 2, I will examine theJackson reforms’ attempts to provide alternative funding options for potentiallitigants. Although the reforms vastly improved the fairness of proceedingsby eliminating recoverability of ATE premiums and CFA success fees, Iconclude that they are insufficient to protect equal access to justice becausethey fail to control the base costs of litigation. Some of the inequities andinefficiencies noted in the first half of this dissertation can be addressed byrefining the test for relief from sanctions in CPR 3.9, setting out a mechanismfor calculating proportionality of costs, simplifying and condensing the CPR,and introducing fixed costs throughout the fast-track and eventually thelower multi-track. However, it is abundantly clear that affordable justice

1 Golder v UK (1975) 1 EHRR 524.

2 Airey v Ireland (1980) 2 EHRR 305; X v UK (1984) 6 EHRR 136.

3 Faulks, Self-Represented Litigants: Tackling the Challenge (2013), at para 3.

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cannot be achieved within the traditional framework of the civil courts, andthat radical structural reform is necessary to accommodate the needs of 21st

century court users.1.3 Structural reform is considered in Chapters 3 and 4, based largely on the

suggestions contained in the Civil Court Structural Review: Interim Report,4

Online Dispute Resolution for Low Value Civil Claims,5 and Delivering Justice in anAge of Austerity.6 In Chapter 3, I will discuss the potential for technology tomake legal content accessible, clear, and as simple as possible at the pre-trialstage. The creation of an initial diagnostic system (much like the NHS‘symptom checker’) is a necessary first step which will enable potentiallitigants to decide whether they have a claim and how it might be pursued.More ambitiously, England and Wales should create a centralised onlinedispute resolution platform (HM Online Court or HMOC) building on currenttechnology which is being developed in the Netherlands and through privatedomestic efforts. Such a platform would enable dispute resolution in a secure,largely automated environment, saving costs for the parties. Any additionalassistance can be provided by lawyers who charge on an unbundled model,resulting in a more focused inquiry with predictable pricing.

1.4 If a dispute cannot be resolved at this point, the HMOC should be capable ofhosting online trial for straightforward debt and damages claims valued atunder £25,000. Parties should make documentary representations to a judge,who should adopt a quasi-inquisitorial approach by requesting any pertinentevidence. Judgments and court orders should be delivered electronically, andjudges should receive automatic updates regarding compliance. Most casesnot suitable to the HMOC should initially be dealt with by a ‘Case Officer’,who can undertake many of the initial case management tasks which do notrequire judicial expertise. Ideally, Case Officers will be qualified mediatorsand trained in early neutral evaluation, and should offer their services toparties where appropriate. Parties who are referred to a judge for trial shouldbe instructed by the Case Officer to gather any additional evidence which heor she considers pertinent. Lastly, more complex cases should bypass the CaseOfficer and be docketed insofar as possible in order to reduce delay, decreasecosts, and promote more consistent management of a claim.

1.5 Proportionate justice at a proportionate price requires reforms which do morethan paper over the cracks in our current system. This author stronglybelieves that technology can revitalise the civil courts, and that austerity neednot be the death knell for equal access to the courts.

4 Briggs LJ (2015).

5 Civil Justice Council (2015).

6 JUSTICE Report, Delivering Justice in an Age of Austerity (2015).

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CHAPTER 1

Access to Justice Denied

CONTENTS6. Introduction 2.017. Access to Information in an Era of Austerity 2.038. Simplification of Civil Proceedings 2.069. Active Case Management 2.0910. Conclusion 2.21

(1) Introduction2.1 Access to justice has two components: (i) access to sufficient information for a

potential claimant to determine whether he has a claim and how to pursue it,and (ii) access to functional civil proceedings through which to vindicate thatclaim. In order to be functional, the proceedings must be fair, efficient, andaffordable.

2.2 The current system undoubtedly fails to meet either of these requirements.Austerity has dramatically reduced court and pro bono resources whileincreasing the number of individuals who rely on them. The Woolf reformswere meant to improve the functioning of the civil court system by simplifyingthe CPR and encouraging active case management, but their mixed success isinadequate to ensure access to justice. The misallocation of judicial time tocertain case management tasks is inefficient and expensive, and theinconsistent application of judicial discretion regarding enforcement of costssanctions and the proportionality test creates unacceptable unpredictability.These problems generate unnecessary cost and delay.

(2) Access to Information in an Era of Austerity2.3 Despite a promise to fund the modernisation of court IT before the Woolf

reforms,7 insufficient funds were ring-fenced to implement Lord Woolf’srecommendations,8 and the Government has only continued to reduce fundingsince.9 This ‘lack of sensible investment’10 has forced overworked andundertrained staff to maintain an unmanageable paper-based case file,11

making it impossible to efficiently process disputes and reducing staffavailability for litigants. The Government recognised this problem and then

7 Lord Chief Justice’s Report (2015), at 5.

8 Turner in Dwyer, The CPR Ten Years On (OUP, 2009) (‘Dwyer 2009’), at 81.

9 Local authority cuts are estimated at £40 million per annum: The Low Commission, Tackling theAdvice Deficit (2014), at 8.1.

10 Lord Chief Justice’s Report (2015), at 85.

11 Brooke, Should the Civil Courts be Unified? 2006 Report, Annex A.

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exacerbated it by introducing a ‘user pays’ system of justice requiring claimantsto pay 5 per cent of the value of their claim upfront if the value is between£10,000 and £200,000.12 Many claimants pay more than the actual public cost ofresolving their dispute as a result.13 This ‘imperfectly progressive’ approach is‘based on the value of a claim rather than the litigant’s capacity to pay’,14 andhas been heavily criticised as a dangerous misunderstanding of thegovernment’s constitutional obligation to secure the rule of law as a publiclyfunded system.15 Higgins notes that the payments makes little difference to theoverall cost of the civil courts, and that its impact on individual claimantsmakes this a disproportionate and troubling development.

2.4 The drastic cuts to legal aid have further reduced access to legal information,leading Lord Thomas to write that the justice system is now ‘unaffordable tomost’.16 Legal aid cuts are estimated at £89 million per annum,17 and thenarrower eligibility requirements led to a 300 per cent increase in referrals fromthe Civil Legal Advice Telephone Gateway (‘the Gateway’) to the NationalDebtline in ten months.18 Legal aid centres have been forced to close ordownsize, contributing to the rise of litigants-in-person.19 In addition, thoseseeking legal aid for debt, discrimination, or special educational needs must beassessed using the Gateway, which is poorly advertised, unintuitive to theuser,20 and available only to those who qualify on means.21 Private sectortelephone lines are also available as an insurance add-on or employmentbenefit, but this is not an alternative for the most vulnerable litigants.22

2.5 Slapper noted that after the LASPO Act 2012, 70 per cent of citizens areineligible for legal aid but incapable of paying for representation.23 Judgesinevitably struggle with caseloads as they adopt a more inquisitorial role

12 Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015.

13 Higgins, ‘Civil Justice in a Shrinking State’ (2015) 34 CJQ, 221 at 224.

14 ibid, at 225.

15 ibid, at 225, per Sir Richard Scott VC.

16 Op cit 7.

17 The Low Commission, Tackling the Advice Deficit (2014), at 8.1.

18 ibid, at 1.16.

19 Justice Committee, ‘Impact of Changes to Civil Legal Aid under Pt 1 LASPOA 2012’ (2015) Ch 5.

20 Legal Action Group, Civil legal aid – the secret legal service? (2013).

21 JUSTICE, Delivering Justice in an Age of Austerity (2015), at 3.9.

22 ibid, at 3.10.

23 Slapper, ‘The law courts are for all, not for Elysium’ J. Crim. L. 2014, 78(5), 363.

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without sufficient resources.24 LASPO cutbacks have destabilised a systemwhich was already under significant pressure, and are likely to merely shiftcosts ‘saved’ onto the decimated civil courts’ budget. Fairness, efficiency, andaffordability are all crippled by this state of affairs,25 and the result is a growing‘advice desert’26 for potential litigants.

(3) Simplification of Civil Proceedings2.6 Lord Woolf recommended the adoption of simple, clear rules which were

responsive to the needs of court users.27 Simplification was pursued by thefusion of procedural regimes in the High Court and county courts, theintroduction of the fast-track and multi-track tiers, and the creation of anoverriding objective to guide the judiciary’s use of a concise, plainly draftedset of rules.

2.7 The fusion of procedural rules removed ‘unnecessary distinctions of practiceand procedure’,28 and the simplification of claim forms, particularly forappeals and judicial review, has made these procedures more accessible to thelitigant-in-person and mitigated the impact of inequality of arms. The creationof new fast-track and multi-track options is an attractive model for theproportionate resolution of disputes by varying procedural complexity.29 Thefast-track is available for straightforward claims for up to £10,000, and haslimited procedures and strict timetables.30 Fixed costs have been introduced inclaims concerning road traffic, some employers’ liability, and public liability.These measures create predictability and efficiently allocate court resources:the larger or more complicated claims which are allocated to the multi-trackare more likely to require individualised directions and active casemanagement, whilst small claims result in a quick and appealable decision.31

2.8 However, the new CPR failed to eliminate unnecessary detail and verbiage:Thompson QC lamented that the rules and accompanying practice directions

24 Briggs, Chancery Modernisation Review: Final Report (2013), at 9.9.

25 Although s 10 LASPO Act 2012 was intended to guarantee legal aid where required by humanrights or EU law, the test of eligibility is complex, and low grant rates incentivise solicitors to turnaway work done on an application.

26 op cit supra note 17.

27Woolf, Access to Justice: Final Report (1996).

28Woolf, Access to Justice: Interim Report (1995), introduction.

29 CPR Pts 27-29.

30 Neuberger, ‘Docketing: Completing Case management’s Unfinished Revolution’ (2012) at 6.

31 Andrews, ‘A New Civil Procedural Code for England: Party-Control ‘Going, Going, Gone’’ (2000)19 CJQ 19.

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‘are, if anything, more detailed and pervasive than before’.32 Moreover, thesuccessful application of these rules depends largely on judicial fidelity to theoverriding objective to deal with cases justly and at proportionate cost, and isseverely undermined by a lack of concrete guidance.

(4) Active Case Management2.9 Zuckerman persuasively conceptualises justice as a public service which must

be properly managed to satisfy the conflicting needs to deliver a correctjudgment within reasonable time at proportionate cost.33 Good management,he argues, requires (i) a clear objective, (ii) adequate tools to achieve thatobjective, and (iii) managers who are willing and able to use those tools.34

Although case management powers provide adequate tools to improveefficiency and affordability, the failure to adopt clear guidance for consistentdecision-making undermines (i) and (iii). This lack of guidance has generatedparticular confusion and satellite litigation with regards to costs sanctions andthe proportionality test.

2.10 Moving towards ‘fair, efficient, and affordable’. The CPR requires the judiciary toensure proportionate use of party and court resources and achieve individualjustice at a ‘reasonable cost and within a reasonable timeframe’35 by (i)identifying pertinent issues upon which a claim is concentrated, (ii)maintaining momentum, and (iii) redirecting disputes which are better-suitedto ADR.

2.11 Early identification of core issues allows the court to order more limiteddocumentary disclosure, saving time and expense. A judge may narrow thescope, form, and length of witness statements,36 though most parties stillselect witnesses and excessive judicial intervention in cross-examination mayamount to a procedural irregularity.37 Lord Woolf also tackled the widespreadexasperation with superfluous expert witnesses. Any expert witness must beapproved by the judge, who can limit the adducing party’s recoverable feesand expenses in respect of the expert.38 Expert evidence must be disclosed pre-trial,39 and supported by a statement of truth which enforces the expert’s

32 Thompson, ‘Woolf’s litigants’ NLJ 27 February 2009, 293, 294.

33 Zuckerman, ‘Litigation Management under the CPR’, Dwyer 2009.

34 ibid, at 93.

35 Clarke, ‘The Supercase—problems and solutions’ (Annual KPMG Forensic Lecture, 2007).

36 CPR 32.2(3).

37 Southwark LBC v. Kofi-Adu [2006] EWCA Civ 281; [2006] HLR 33.

38 CPR 35.4.

39 CPR 35.13.

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overriding duty to the court.40 Opposing experts can be directed to identifyareas of agreement or disagreement,41 narrowing the scope of the dispute andencouraging settlement, or a single joint expert may be agreed in writing.42

2.12 These reforms undoubtedly promote efficiency by limiting the time devotedto disclosure and examination of evidence, and by encouraging settlementbetween parties whose experts have consulted each other. However, the useof pre-action protocols to ensure accurate case management also forces theparties to accrue large up-front costs:43 claims must be more precise and aremet with full defences, initial disclosure is performed at a higher volume, andwitness statements must be exchanged. This is particularly problematic forthe vast majority of cases which settle before trial.

2.13 Timetabling has aided momentum by focusing parties on core issues,reducing cost and mitigating unfairness caused by inequality of arms.44 Thegradual normalisation of ADR can be equally successful when judges taketheir duty to recommend appropriate alternatives or order a stay seriously,45

and when they genuinely make costs order which reflect unreasonablerefusals to consider offers of settlement or ADR.46

2.14 Case management in the wrong hands. Although case management hasimproved the efficiency of civil proceedings, the significant front-loading ofcosts has prevented increased efficiency from translating into more affordablejustice. Additionally, its misallocation to highly paid judges has increasedcosts, cut into time which could have been spent exercising judicial expertise,and created delay by giving judges work for which they are ill-suited. Inparticular, ‘judges know remarkably little about costs or the drivers of costs’47

and spend a significant proportion of their time pouring over calculationswhich could be done more accurately and cost-efficiently by someone else.

2.15 Parties in Multi-Track cases must file a costs budget for claims under £10million,48 which limits standard basis costs and will only be departed from

40 PD (35) 1.3.

41 CPR 35.12(1).

42 CPR 35.

43 Turner, ‘Actively: the word that changed the civil courts’ in Dwyer 2009, at 84.

44 CPR 1.4(2)(g), 29.2(2).

45 CPR 1.4(2)(f).

46 CPR Pt 36, and 44.4(3)(a).

47 Parkes in Dwyer 2009, 11.

48 CPR 3.12.

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with good reason.49 If a party objects to the other’s costs, the court approves ormodifies the budget.50 Costs budgets are of central importance to litigants,and unless parties agree for summary judgment on budgeting, a costsmanagement conference can take hours, increase lawyers’ fees, and requirethe judge to read large volumes of evidence and hear lengthy arguments. Thistime-consuming task has been abandoned for four months in High Courtclinical negligence cases simply to clear backlog,51 underscoring its role increating delay.

2.16 Costs-budgeting provides valuable certainty in an area of crucial importanceto parties and increases the chances of settlement.52 Jackson’s support of theexpansion of discretionary costs management is unconvincing.53 AlthoughJackson believes that ‘all judges will conscientiously’ apply criteria fordetermining when costs management is unnecessary or would cause unduedelay,54 Lord Dyson MR convincingly argues that discretion undermines costmanagement and the certainty it has provided.55 Costs budgeting is alreadydiscretionary for claims valued below £25,000 and above £10 million, and forclaims concerning urgent health issues or children.56 These exceptions arewell-principled and should be maintained, but further discretion isunnecessary. Instead, the task should be partially automated and allocated toappropriately trained court staff. Standard cost management orders and clearformat requirements for solicitors will also streamline the administration ofcosts.57

2.17 Unpredictable case management. Consistent judicial application of proceduralrules enables parties to appropriately regulate their conduct to avoidsanctions or inefficiency.58 A judge’s approach to case management dependslargely on his or her attitude to the role, and the resulting unpredictability hasgone unchecked by the Court of Appeal,59 which is unwilling to intervene in

49 CPR 3.18.

50 CPR 3.15(2).

51 Hyde, ‘Costs budgeting rules to be disapplied for three months’ (Law Society Gazette, 2015).

52 Jackson, ‘Confronting Costs Management’ (2015) Harbour Lecture.

53 ibid, at Pt 2.

54 ibid at 4.6.

55 Dyson, ‘Confronting Costs Management’ (2015) Harbour Lecture.

56 Briggs LJ, CCSR: Interim Report (2015), at 3.6-3.7 (‘CCSR Report 2015’).

57 ibid, at 3.3 and 3.7.

58 Genn, Judging Civil Justice (CUP, 2009).

59 Zander in Dwyer 2009.

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case management decisions.60 This has particularly encouraged satellitelitigation with regards to CPR 3.9 and proportionate costs by creatingconfusion and scope for challenge. The result is increased costs andexacerbated unfairness if the better-resourced party uses such litigation topressure its opponent.61

2.18 Discretionary relief from a sanction under CPR 3.9 may be granted if theprocedural breach is not serious or significant, the breach occurred for a goodreason, and it is just in ‘all the circumstances of the case’, particularly in lightof the need for efficiency, proportionate cost, and enforcement of the rules. 62

Seriousness and significance have been left to the courts to apply ‘in aconsistent manner’ without further guidance,63 and although the court inMitchell noted that overlooking a deadline is not ‘good reason’,64 it is unclearwhat constitutes good reason. The court simply warns that compliance is notan end in itself and that refusal of relief for any non-trivial response is‘manifestly unjust and disproportionate’.65 Flexible remedies for breach are‘one of the great virtues of the CPR’,66 but wide discretion based on subjectivecriteria creates unpredictability and encourages satellite litigation contesting asanction, demanding a sanction, or suing solicitors in negligence.

2.19 Andrews attractively argues that costs sanctions should be imposed wherethey are reasonable in light of the harm caused to proceedings andproportionate to ‘the seriousness of the matter’ and ‘the degree to which theconduct was deliberate’.67 This replaces ‘good reason’ with a familiar faultcriterion, and contextualises seriousness to preserve flexibility. Whilst thissanction operates automatically and the party must apply for relief,68 the courtshould not adopt draconian enforcement over sensible application.69

60 Thomas v. O’Connor [2005] EWCA Civ 1533, per Brooke LJ.

61 Zuckerman, ‘Litigation Management under the CPR’, Dwyer 2009.

62 Denton [2013] EWCA Civ 1537; [2014] 1 WLR 795, at [24].

63 ibid, at [26].

64 Mitchell v. News Group Newspapers Ltd [2013] EWCA Civ 1537; [2014] 1 WLR 795, at [41].

65 Denton, at [38].

66 Aktas v. Adepta [2010] EWCA Civ 1170; [2011] QB 894, at [92].

67 Andrews on Civil Processes (CUP, 2013), 9.30, citing Principle 17.2 of UNIDROIT, Principles ofTransnational Civil Procedure (CUP, 2006).

68 Marcan Shipping v. Kefalas [2007] EWCA Civ 463; [2007] 1 WLR 1864.

69 Cf. Zuckerman, ‘Litigation Management under the CPR’, Dwyer 2009.

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2.20 The ‘nebulous’70 requirement of proportionate recoverable costs isunfortunately defined by subjective or unquantifiable criteria listed in CPR44.3(5), and it has been left to commentators to speculate whenproportionality should apply and how much it should affect recoverability.Andrews sensibly cautions against crude use of proportionality toretrospectively give general discounts, particularly when excessive costswhich are necessary and reasonable are incurred by systemic problems.71

Whether cost is excessive should be addressed with reference to cost-budgeting, and proportionality only justifies a reduction if there ismisconduct by the receiving party.72 This is a convincing argument whichnarrows the scope of judicial discretion to retrospectively express disapprovaland sets a clear standard for potential litigants while incentivising compliancewith procedure. Adoption of a broader rule might discourage meritoriousclaims for fear of insufficient recovery and would add further unpredictabilityto an already dysfunctional system.

(5) Conclusion2.21 The Woolf and Jackson reforms are undoubtedly better than what came

before, but they were crippled by a lack of government funding and the lackof freedom to write a set of civil procedure rules without civil servants.Judicial case management tools are unpredictably wielded with regards tocosts, which are of crucial importance to the parties and do not effectivelyaddress disproportionate base costs. Although the Jackson reforms mitigatethe resulting inequality of arms, the discussion in Chapter 2 will clearlydemonstrate that any genuine reforms must seek to diminish rather thanredistribute the costs of litigation.

70 Zuckerman, ‘The Jackson Final Report on Costs—Plastering the Cracks to Shore up aDysfunctional System’ (2010) 29 CJQ 263.

71 Andrews, `On Proportionate Costs’ (2014) 232 Revista de Processo 393, at section V.

72 Cf. Rovi Solutions Corp (Costs) v. Virgin Media Ltd [2014] EWHC 2448 (Pat), in which parties agreedthat the court should provide an overall percentage figure deduction of costs on the basis that thedefendant had not succeeded on all costs, without rationalising where the deductions were comingfrom.

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CHAPTER 2

Jackson Reforms: In Search of Proportionate Costs

CONTENTS5. Introduction 3.016. Costs Agreements 3.027. The Elephant in the Room 3.088. Revision of the CPR 3.11

(1) Introduction3.01 The Jackson reforms were a valiant attempt to improve access to justice by

limiting the recovery of burdensome cost agreements and giving litigantsmore funding options. Nevertheless, they failed to address the exorbitant basecosts of litigation, which will be the proverbial ‘elephant in the room’ of anyreform committee until they are adequately addressed. Until the justicesystem responds to the overwhelming need for proportionate justice at aproportionate price, it will be incapable of delivering access to justice in aneffectively post-legal aid era. The first steps in this direction can be taken byamending the CPR.

(2) Costs Agreements3.2 As legal aid disappeared, conditional fee agreements (CFAs) allowed litigants

to pursue a claim on a ‘no-win, no-fee’ basis, often subject to an additionalsuccess fee. After-the-event insurance (ATE) could also be purchased by alitigant wishing to underwrite his liability for costs.73 To preserve access tojustice, success fees and premiums (‘additional liabilities’) were maderecoverable from the losing party,74 but Lord Neuberger expressed graveconcerns that (i) the claimant had no interest in controlling costs; (ii) the loserwas paying three times the winner’s ‘real’ costs and subject to significantpressure to settle; (iii) proportionality was irrelevant to the recovery ofsuccess fees or ATE premium, which merely needed to be reasonable,75 and(iv) the loser paid more if his claim was meritorious, since this was reflectedin the success fee and ATE premium.

73 Modernising Justice (Cm 4155).

74 S 58A Courts and Legal Services Act 1990 (CFAs) and s 29 AJA 1999.

75 Home Office v. Lownds [2002] 1 WLR 2450. This test was deemed ‘integral’ to the provision of justicein ‘the post-legal aid world’ and applied to ATE premiums (Rogers v. Merthyr Tydfil County BC [2006]EWCA Civ 1134; [2007] 1 WLR 808, at [31]) and success fees in Atack v. Lee [2004] EWCA Civ 1712;[2005] 1 WLR 2643.

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3.3 The Jackson reforms addressed these fundamental concerns by giving partiesan interest in controlling their costs. They made additional liabilitiesirrecoverable,76 capped success fees, and introduced damages-basedagreements (DBAs)77 and qualified one-way cost shifting (QOCS) for personalinjury claims. Crucially, disproportionate costs are now irrecoverable onstandard basis assessment even if they were reasonably and necessarilyincurred.78

3.4 Irrecoverability of additional liabilities radically changes the balance ofincentives for potential claimants, even with the implementation of a 10 percent increase in general damages for non-pecuniary loss to assist claimants inpaying additional liabilities.79 Parties are now incentivised to considersettlement or ADR, and given reason to prevent their representatives fromundertaking superfluous research or spending excessive time at trial, therebysaving cost and time. Manipulation of cost agreements to pressure one’sopponent is more difficult, undoubtedly making use of such agreementsfairer, and success fees are capped.80 This addresses the potential breaches ofArticle 10 and Article 6 ECHR, at least as concerns additional liabilities.81

However, access to justice is restricted for those who cannot afford litigationwithout a CFA but cannot afford the success fee, contingency fee, or ATEpremium. As a result, the cost of litigation may decrease while itsaffordability suffers.

3.5 This negative repercussion of irrecoverability is partially mitigated by theintroduction of DBAs,82 under which a claimant pays his representative apercentage of his damages, subject to a cap.83 The loser’s payable costs arecapped at the contingency fee, even if the standard hourly rate would behigher. Such an agreement makes litigation more affordable, and it isundoubtedly fair on the defendant, who will not be made to pay more than

76 S 44(4) and 46(1) LASPO.

77 S 45 LASPO.

78 CPR 44.3(5).

79 Simmons v. Castle [2012] EWCA Civ 1288; [2013] 1 WLR 1239.

80 Concern regarding blackmail was expressed in MGN v. UK [2011] ECHR 66, 39401/04.

81 In MGN Ltd v. United Kingdom (2011) 53 EHRR 5, Strasbourg held that the award of success feesbreached Article 10 because it had a chilling effect on freedom of expression by the press; however,the House of Lords in Campbell v. Mirror Group Newspapers [2004] UKHL 22; [2004] 2 AC 457 held thatsuccess fees could not be disallowed on this basis. The latter case was followed in Miller v. AssociatedNewspapers [2016] EWHC 397 (QB), but this clear conflict is likely to go to Strasbourg. In Coventry v.Lawrence (No 3) [2015] UKSC 50; [2015] 1 WLR 3485, the UKSC held that payment of additionalliabilities was not a breach of Article 6 of the Convention.

82 S 45 LASPO.

83 Damages-Based Agreements Regulations 2013/609.

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the claimant’s costs as traditionally assessed. However, such cases may be‘cherry-picked’ by lawyers who would forego meritorious but complex claimsfor a small sum, restricting access to justice for that group.84 Additionally, theover-regulation of DBAs and the unenforceability of agreements which fail tocomply with the regulations makes their use rare.85 It also prevents the use ofhybrid DBAs (no win-low fee agreements) for fear of falling afoul of the DBARegulations,86 even though freedom of contract would suggest that suchagreements are acceptable.87

3.6 QOCS was intended to preserve access to justice in personal injury claims bypreventing defendants from recovering costs of a successful defence,88 suchthat ATE insurance is unnecessary. Although this lessens a claimant’sinterests in controlling costs, it does not require the defendant to payexorbitant additional liabilities, protecting affordability of justice withoutcompromising fairness to the defendant. The risk of frivolous litigation ismitigated by the removal of protection for claims which are struck out,fundamentally dishonest, or subject to a Part 36 offer to settle, and it is onlyunfortunate that this tool is available for the management of more claims.89

3.7 Post-Jackson, standard basis costs must be proportionate and reasonablyincurred or reasonable in amount.90 Costs are proportionate if they bear areasonable relationship to the sums or non-monetary relief claimed, thecomplexity of litigation, any additional work generated by the paying party’sconduct, or any wider factors such as reputation or public importance.91 Theproportionality of additional liabilities is considered in light of thecircumstances (including pay-out and other available financing methods)92 asthey reasonably appeared to the solicitor at the time of the arrangement. 93

Irrecoverability of disproportionate costs should focus parties on key issues

84 MGN, at [207].

85 Jackson, ‘Commercial Litigation: the Post-Jackson World’ (2014) speech to the Law SocietyConference.

86 Hurst, 2016 Cambridge Symposium.

87 See Andrews on Civil Processes (Intersentia, 2013) at 20.24.

88 CPR 44.13-44.17.

89 Op cit 81, per Lord Neuberger.

90 CPR 44.4(1)a.

91 CPR 44.3(5).

92 S 11.8 Practice Direction to Pt 44 CPR.

93 ibid, ss 11.7 and 11.10.

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and increase fairness by preventing abuse of unequal resources, therebyincreasing efficiency and lowering costs. However, the lack of ‘clear androbust’94 guidance has led to satellite litigation and unpredictability,increasing costs.95

(3) The Elephant in the Room3.8 Cost agreements and assessments after the Jackson reforms are undoubtedly

fairer, and the new rules encourage efficiency by giving parties an interest incontrolling costs. However, they fail to protect litigants from the nearlyinevitable disproportionality of base costs, particularly if the claim ismeritorious and concerns a small sum with complex law or facts.96 This gravereality cannot be ignored. Article 6(1) of the European Convention on HumanRights implies a right of effective access to the court,97 and a Governmentreport acknowledged that ‘the rule of law itself would be threatened if lesswell-off people were effectively excluded from justice’.98 The current system’seconomic barriers effectively preclude the vast majority of disputants fromreceiving a binding public judgment and fundamentally breach the rule oflaw, and the safety net created by the ‘exceptional funding’ provision must bewidely construed to remedy this problem.

3.9 In Coventry v. Lawrence (No 3), the Supreme Court expressed dismay atastronomical base costs, but it did not consider whether the lack of legal aid inconjunction with those costs was a sufficient barrier to the courts to constitutea breach of Article 6(1). A lack of legal aid in civil cases will be a violation ofArticle 6(1) where the complexity of litigation makes it unrealistic to expect alitigant-in-person to properly present his or her case,99 or where it leads to apatent unfairness in proceedings.100 Section 10(3) of the LASPO Act 2012allows legal aid to be made available where the failure to provide suchfunding is a breach of an individual’s Convention rights, but the currentexceptional funding scheme has been ruled unlawful by Collins J.101 He heldthat the application for exceptional funding is ‘far too complex’102 forunrepresented applicants and requires excessive information, that ‘the

94 Neuberger, ‘Docketing: Completing Case management’s Unfinished Revolution’ (2012) at 4.

95 See 2.20 of this work.

96 Coventry v. Lawrence (No 2) [2014] UKSC 46; [2015] AC 106 at [37], per Lord Neuberger.

97 Golder v. UK, (1975) 1 EHRR 524, ECHR, at [35].

98 ‘Modernising Justice’ (Lord Chancellor’s Dept, Cm 4155, 1998), para 3.4.

99 Airey v. UK (1980) 2 EHRR 305.

100 Steel & Morris v. UK (68416/01) [2005] EMLR 15, at [69]; cf. McVicar v. UK (46311/99) (2002) 35EHRR 22.

101 IS v. Director of Legal Aid Casework [2015] EWHC 1965 (Admin); [2015] 1 WLR 5283.

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rigidity of the merits test […] is wholly unsatisfactory’,103 and that the schemeis an ineffective safety net because it does not provide a ‘right of appeal to ajudicial person’ except via judicial review on the basis of Wednesburyunreasonableness.104 Collins J also notes that in the first six months of thescheme, only one of 62 applications by non-lawyers was successful,105 and thatoverall only 13% of cases were successful.

3.10 The Ministry of Justice is appealing this decision, but in any event it is clearthat an effective safeguard requires the exceptional funding guidelines toadopt a simple test which allows for judicial discretion based on the facts ofeach case. Collins J rightly recommended simplified forms for unrepresentedindividuals,106 and reformulation of the merits test. In response, the LordChancellor amended the merits criteria,107 such that representation will begranted if (i) prospects of success are moderate or better, (ii) if prospects ofsuccess are borderline or poor (20% or more) but refusal would breach aConvention right, or (iii) if it is appropriate to grant representation on thefacts in light of a risk of breach. This is a welcome relaxation of the formertest, but it remains to be seen whether it is sufficient. A ‘risk’ should satisfythe third category if it is real, and the second category should be broadlyconstrued in light of the importance of Convention rights.

(4) Revision of the CPR3.11 Changes to the CPR are necessary to address or mitigate the issues considered

in Chapter 1 and 2 of this work. In particular, these should include: (i)simplification of the CPR; (ii) fixed costs for the fast-track and lower multi-track; (iii) the introduction of hybrid DBAs; and (iv) reform of CPR 3.9 tointroduce the test attractively proposed by Andrews, as set out at 2.19 of thiswork.

3.12 The CPR and its supplements are nearly 7,000 pages long: ‘the sheer breadth,use of technical terms, need to cross-refer, and supplementation by a host ofPractice Directions, Practice Guides, protocols and court forms’ is challengingfor lawyers, and will be impossible to navigate for the rising number oflitigants-in-person.108 These should all be condensed and rewritten, preferablyby a judge. Inspiration should be taken from the satisfactorily slim booklets

102 ibid, at [30].

103 ibid, at [106].

104 ibid, at [93].

105 ibid, at [46].

106 ibid, at [105].

107 CLA (Merits Criteria) (Amendment) (No 2) Regulations 2015.

108 The Judicial Working Group on Litigants in Person: Report, July 2013, at 5.6 (‘July 2013 Report’).

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like the standard arbitration rules. Where one or more parties is a litigant-in-person, the judge should make significant use of CPR 3.1A, which encouragesthe adoption of standard directions insofar as possible in order to simplifyproceedings.

3.13 Fixed costs should be introduced for non-personal injury fast track claims andfor lower multi-track claims, in accordance with Jackson LJ’srecommendations.109 This ensures that a party’s costs are proportionate to thevalue of the litigation and provides certainty for litigants. If the modeladopted by New Zealand is followed, fixed costs may also ensureproportionality to the complexity of the issues and the time it reasonablytakes to complete the task.110 Jackson LJ has set out a tentative grid by whichclaims can be assessed, and this attractive model should be given seriousconsideration.111

3.14 Hybrid DBAs are an attractive alternative funding arrangement, and their usewould not impact the sum paid by a losing defendant to the claimant. TheDBA Reform Project rightly recommends that the government’s policyobjections to hybrid DBAs should be reconsidered in order to increase theuptake of DBAs by the legal profession.112 Use of DBAs as part of a package offunding agreements with clients will release cash flow for firms and generategreater appetite for the arrangements. The Report also made severalrecommendations to clarify the use and terms of DBAs, which had previouslybeen unclear and had contributed to the reluctance to use DBAs.

3.15 While the more minor inefficiencies and inequities of the current civil justicesystem can be remedied by a revision of the CPR and its practice guides,structural reform is necessary to adequately address the elephant in the room.The base costs of litigation must be lowered in several ways: firstly, the use oflawyers should be reduced by automating the answers to questions asked bypotential litigants who are attempting to ascertain whether they have a claim;secondly, the pre-trial resolution of that claim should be dealt with primarilywithout need for legal advice; and thirdly, costs of litigation should beminimised by reserving expensive judges for judicial rather than casemanagement tasks. These proposals are crucial to making legal contentaccessible and legal procedure fair, efficient, and affordable.

109 Jackson, ‘Fixed Costs—The Time Has Come’ IPA Annual Lecture 2016.

110 ibid, at 4.1.

111 ibid, at 5.4-5.9.

112 Mulheron, The DBA Reform Project CJC Report (2015).

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CHAPTER 3

Modernising Access to Information: Radical Reform at the Pre-Trial Stage

CONTENTS6. Introduction 4.017. Dispute Avoidance 4.038. Dispute Containment and Commencement 4.079. System Development 4.1010. Ensuring Access to Justice Across Digital Divides 4.15

(1) Introduction4.1 It has been established that access to justice requires (i) access to sufficient

information and guidance for potential litigants to determine whether there isa claim and how it may be pursued, and (ii) fair, efficient, and affordable civilproceedings through which such a claim may be vindicated. This chapterconcerns the first requirement. Modern access to information should rely on acomprehensive, integrated online service with a supplementary telephoneservice as the primary tools for initial legal information, assistance, andadvice. This service should be primarily aimed at those with small, mediumor straightforward claims, since large or complex disputes are likely to requiremore individualised consideration by a solicitor from the beginning.

4.2 Pre-trial information and guidance can be effectively delivered in three stages,upon which the online and telephone service should be modelled: i) aninformational and evaluative stage aimed at dispute avoidance; ii) aninquisitorial stage which facilitates dispute containment by self-help; and,failing that, iii) a formal dispute commencement stage which indicatesappropriate dispute resolution procedures, drafts a claim form, and refers theindividual to relevant solicitors or other professionals. These stages align withthe Online Dispute Resolution (ODR) Advisory Group’s recommendation foran online court (the HMOC),113 tier one of which would provide ‘onlineevaluation’, and tier two of which would provide ‘Online Facilitation’ withoutjudicial involvement.114 However, it is my view that as online content modules

113 Online Dispute Resolution For Low Value Civil Claims (2015) (‘ODR Report’).

114 ibid, at 2.1-2.2.

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are created, they should be used by all suitable claims, rather than claims fordamages for less than £25,000 (as envisaged by the ODR Advisory Group).

(2) Dispute Avoidance4.3 The aim of this online system is to provide access to information without

financial barriers, and to give users tools for effective self-help. Even whenself-help fails, parties should be able to obtain information and guidance atpredictable prices, and limit the scope of that guidance to specific unresolvedissues. Efficient use of this system also would significantly ease pressure onin-person legal advice services needed by the most vulnerable individuals.

4.4 Much like the NHS’s ‘symptom checker’ website, the online service shouldinitially walk users through a series of simple questions to appropriatelyidentify their legal problem. Terms should be defined where necessary, andusers should be able to see their answers to prior questions as they advance.The number of the general helpline, or relevant specialist helpline, should alsobe visible. Based on the answers given, users should be presented with achecklist of relevant considerations, each of which have further informationembedded. Options for further action should be briefly outlined, includingthe time, cost, and potential results of each option. No legal advice is offeredat this first, free stage.

4.5 The supplementary telephone service should be capable of assisting userswho are navigating the online system (via chat-box or calls) and ‘providingaccurate, substantive information’115 and alternative resources to those whocannot. Specialist helpline extensions should exist where possible, and staffmust be properly trained on a range of matters and properly resourced withpaper and online materials. Callers should be given an estimated time on holdas well as the option to request a call-back, and those who prefer a languageother than English should be able to request a call-back from a qualifiedmember of staff. Telephone staff should take notes on discussions, and shouldfollow up via email where appropriate (e.g. with links to further information).If the issue is likely to require ongoing legal support, staff should directcallers to an online referral database or put the caller in touch with a specificprofessional.

4.6 The current Gateway is managed by the Legal Aid Agency, which contractsout the telephone services. A similar approach can be adopted, andcollaboration with legal advice clinics and pro bono centres should be

115 The Low Commission, Tackling the Advice Deficit (2014), at 3.27 (Low Commission Report).

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encouraged. This system should be widely advertised in relevant settings,such as NHS waiting rooms, community centres, or assisted living facilities.116

Users should be encouraged to turn to the online system first and only use thetelephone system if they have trouble or would like further information, asthis will most effectively leverage the delivery of legal information andadvice.

(3) Dispute Containment and Commencement4.7 If a user intends to take further action after going through the initial

evaluation and information, he should be able to open a free account andbegin a ‘dialogue’ stage. The user should first be invited to undergo a seconddiagnostic questionnaire which aims to find common ground with the otherparty. The system should then identify points of disagreement, draft anyinitial documents, and create a list of objective problem-solving criteria. Theuser should be invited to begin correspondence (including exchange of anydocuments) with the other party using a secure, confidential forum.Communication can be guided by different templates, and should beautomatically placed into an online claim file. More informal communicationcan be done through a chat box or tools to mark progress (such as agreementsreached) on the initial points of disagreement. The system should continue toindicate potential next steps to users, with an emphasis on resolution of thedispute. It should also provide arithmetic support where relevant forconsidering damages.

4.8 Users should be able to indicate a desire for third party intervention, at whichpoint they may select a certified mediator or solicitor from the system’sreferral database to join the dialogue. Listed advisers should be filtered byprice and any particular expertise,117 and should be employable for anunbundled task with which parties need further assistance. This will allowparties to obtain limited advice at more predictable prices. The ODR Reportsuggests that the free Small Claims Mediation Service (SCMS) pilot can serveas a model for the online version.118 The SCMS successfully resolved 79.8% ofclaims in 2012,119 reducing time to settlement to about 20 weeks.120

116 ibid, at viii. The Ministry of Justice is currently funding the development of awareness campaignsfor a central website for litigants-in-person with AdviceNow.

117 Prices should be fixed or transparently variable.

118 ODR Report, at 7.6.

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4.9 If self-help resolution is unsuitable or fails,121 parties may elect to begin formalproceedings. The online programme will describe the procedure, timeline andcosts of formal mediation, arbitration, solicitor-assisted negotiation, and trial.It will allow parties to examine a database of certified mediators, arbitrators,or solicitors in the region, and may assist parties in filing the appropriateclaim forms or other documentation.

(4) System Development4.10 Using software as a service (SAAS). Streamlined, interactive software for

potential litigants already exists, and should serve as the basis of the singlenational service envisaged in this chapter.122 In England, these initiativesinclude CourtNav,123 a question-based platform which fills in courtdocuments for litigants-in-person, and Resolver, a free resource whichidentifies consumer rights against suppliers and retailers, creates a case filewhich automatically stores relevant phone or email correspondence, andindicates potential next steps. These projects can provide useful consumerdata and costs-saving analysis as the design for a centralised system is beingproposed. England can also benefit greatly from Dutch innovation: theNetherlands has already invested in a fully-fledged online dispute resolutionsystem called Rechtwijzer 2.0, which it has offered to an internationalconsortium.124 The commoditised software can be licensed to legal providers,and is fundamentally disruptive technology for the legal sector.125 Question-based diagnostics technology is widely available, and existing technologieswhich securely and confidentially facilitate the exchange of documents orcommentary can be adapted to legal negotiations with little difficulty. Forexample, Modria is a cloud-based online dispute resolution (ODR) platformwhich offers SAAS. Licensed users can customise the ODR service, which caninclude evaluation, ADR, document generation, and scheduling.

119 Rustidge, ‘Analysis of Qualitative Data: Small Claims Mediation Service’ (2012), at 5.

120 ODR Report, at 7.4.

121 E.g., if one party is refusing to communicate or the dispute relates to divorce proceedings wheremiscommunication is a leading issue.

122 ODR Report, at 4.1.

123 Developed by the RCJ Advice Bureau and Freshfields Bruckhaus Deringer LLP.

124 JUSTICE Report, Delivering Justice in an Age of Austerity (2015), at 3.16 (‘Justice Report 2015’).

125 Susskind, The End of Lawyers? (OUP, 2010), at 98.

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4.11 Development of the online service is estimated to take ‘at least two years fromthe agreement of funding’,126 though the fast-paced commoditisation of user-interface software may present opportunities for a first-generation service in ashorter time-span.

4.12 Developing legal content. Much of what an online service would offer isinformational rather than advisory: the relevant law on a wide range of topicsshould be presented in an understandable format, alongside concrete optionsfor further action. Organisations like Citizens Advice and the Access to JusticeFoundation have already developed such content, as have private sector lawfirms and chambers.127 These parties should be invited to contribute contentand collaborate on modules,128 and relevant agencies should be commissionedto develop independent self-help guides for all areas of social welfare law (asa starting point for the most vulnerable) and areas of most commondisputes.129 Dedicated teams should adapt the content provided and present itin an interactive format (i.e., the user is directed to relevant material after afew initial questions, with options for further refinement), and update it asnecessary.

4.13 Funding. In its April 2015 report, JUSTICE recommended that the capitalinvestment for this service should be provided by a consortium consisting ofthe Ministry of Justice and private sector stakeholders including specialist ITcompanies and law firms.130 Similarly, the Low Commission proposed thecreation of a ten-year National Advice and Legal Support Fund, financed by aconsortium of public and private stakeholders. The Commission consideredthat £50 million per annum should be given by the MoJ, the Department forBusiness, Innovation and Skills (BIS),131 and the Department for Work andPensions (DWP).132 The DWP would also contribute by paying costs of any ofits decisions which are overturned on appeal, since they are significant in

126 JUSTICE Report, Delivering Justice in an Age of Austerity (2015), at 3.14.

127 For example, Herbert Smith Freehills LLP already publishes regular bulletins online as part oftheir ‘HSF Notes’ on new legislation and the implications for clients.

128 Staff should emphasise that multi-lingual contributions are helpful if possible.

129 Low Commission Report, at 4.14.

130 At 3.24.

131 The BIS already provides core funding to support Citizens Advice. In January 2014, it wasproviding £20 million per annum. Low Commission Report, at 8.4.

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number.133 The Cabinet Office already contributes funds towardsimprovement of the civil justice system, and should continue to do so.

4.14 Another £50 million per annum can be contributed by local public sectorfunding (i.e. from prison services and local authorities), lawyer fund-generation schemes, voluntary contributions from charities and trusts,134 andvoluntary private sector donations. Lawyer-fund generation schemes include‘dormant funds’ held by solicitors for untraceable clients or dissolvedcompanies, unclaimed damages resulting from collective actions incompetition law, and a mandatory ‘Interest on Lawyer Trust Accounts’scheme which allows solicitors to group funds and thereby gain a higherinterest rate.135 The private sector may be incentivised to provide sponsorship,pro bono support, and community banking by the prospect of brandpromotion to what Susskind describes as a ‘latent legal market’.136 These areindividuals who need or would benefit from legal guidance, but have lackedthe resources or will to seek it.

(5) Ensuring Access to Justice Across Digital Divides4.15 The system outlined above should be the primary resource for most

individuals, but provision must be made for those precluded from effectivelyusing the online resources. Individuals may be excluded by lack of physicalaccess to the relevant technology, lack of the technical ability to use it, orcultural disinclination do so.137 These three ‘digital divides’ are barriers to ashrinking minority of people: 86 per cent of adults aged 16 or over in the UKare internet users,138 and the National Audit Office concluded that the largemajority of those users had the requisite technical ability to navigate aninteractive website.139 However, the Chartered Institute of Personnel and

132 ibid, at 8.3.

133 ibid, at 3.6. However, this retrospective payment does not improve access to justice for theclaimant at the time.

134 The Low Commission cites the Big Lottery Fund, the Access to Justice Foundation, and the LegalSupport Trust as potential sponsors.

135 ibid, at 8.30.

136 Susskind, The End of Lawyers? (OUP, 2010) at 18.

137 Smith and Paterson, Face to Face Legal Services and Their Alternatives: Global Lessons from the DigitalRevolution (2014).

138 Office for National Statistics, Internet Users (2015).

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Development notes that the excluded minority tend to be the mostvulnerable,140 and that those who lack technical ability may be those withlanguage or cognitive barriers. In particular, the elderly and disabled havealmost half as much exposure as other groups.

4.16 The supplementary telephone system may cater to some individuals who areexcluded from the online service, but the most vulnerable people may beunable to effectively use either. The introduction of the Gateway raisedconcerns because its mandatory nature risked excluding those without easyaccess to a telephone or the necessary privacy to make a call. In particular,this affects homeless people, victims of abuse, prisoners, the elderly ordisabled in assisted living, and refugees or asylum seekers. Those with lowlevels of literacy or fluency in English are also significantly disadvantaged.141

4.17 Those who are ill-suited to communicating online or via the telephone willremain users of in-person support offered by legal advice clinics orprofessional pro bono schemes. These schemes will undoubtedly remainavailable, particularly in cities or university areas, but they are subject to thegeographical biases which have created the ‘advice deserts’ mentioned inChapter 1 and under increasing strain.

4.18 The implementation of a national online and telephone services would easethe significant pressure on limited in-person resources, which is particularlyimportant as austerity measures force organisations which provide free orlow-cost advice to close and increase the number of people who rely on them.By referring the vast (and growing) majority of potential litigants to an onlinesystem, in-person resources can be reserved for those who most need them.142

139 National Audit Office, Putting Users at the Heart of Government’s Digital Services (2013) at para 3.9.

140 Move to Online Claims for Jobseekers Allowance Causes Concern (2012).

141 Ministry of Justice, Reform of Legal Aid in England and Wales: the Government Response (2011), at 163.

142 JUSTICE Report, Delivering Justice in an Age of Austerity (2015), at 3.6.

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CHAPTER 4

Attempts to Redesign Fair, Efficient, and Affordable Civil Proceedings

CONTENTS4. Introduction 5.015. IT Investment and HM Online Court 5.026. Rethinking Conventional Trial 5.10

(1) Introduction5.1 Fair, efficient, and affordable civil proceedings can be designed by streamlining

back-office and user-facing court administration, recognising the potential foran online court,143 adopting an inquisitorial fact-gathering approach to casemanagement by court staff,144 making ADR a norm, and docketing larger multi-track cases insofar as possible.

(2) IT Investment and HM Online Court5.2 IT Investment. The HMCTS Reform Programme intends to ‘modernise and

fully digitise the courts’,145 and has been allocated £700m funding by theGovernment to do so.146 Once implemented, parties should be able to issueproceedings, serve a claim form, pay court fees, and receive judgments andorders online.147 Susskind is developing a system by which litigants can accesstheir court files online and receive email prompts with relevant deadlines,whilst judges can receive alerts when deadlines have been missed.148 Suchinvestment could also significantly improve the enforcement of judgmentsand orders, which is currently ‘heavily localised, paper-based, prone to errorin form filling, and perceived to be slow, ineffective and expensive’.149 TheCosts Review Final Report 2010 recommends the introduction of automatedcompliance monitoring to centralise enforcement and reduce delay byrejecting submission of a form unless it is correctly completed.150

143 Briggs LJ, Chancery Modernisation Review: Final Report (2013) (‘CMR Report’).

144 JUSTICE, Access to Justice Report 2015.

145 HM Treasury, ‘Spending Review and Autumn Statement 2015’, at 9.2.

146 Briggs LJ, CCSR: Interim Report (2015), at 1.8 (‘CCSR Report’).

147 ibid, at 4.10. This has also been supported in the Justice Report 2015, at 4.2, and by the ODRReport.

148 Jackson, `Reforming the Civil Justice System—the Role of Information Technology’ (2012), at 3.5.

149 ibid, at 5.97.

150 ibid, at 5.98. Briggs LJ suggests that improper completion of the form is a pervasive problemwhich consumes judicial time by requiring continued intervention.

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5.3 Investments have already begun to improve case management. Although in2013 Briggs LJ lamented that the courts struggled to allocate trial judgesappropriately and in advance because ‘running diaries for…full-time judgesin hard copy form is considered impracticable’,151 he has recently noted thatcourts in the Rolls Building now ‘have access to an electronic filing and diarysystem called CE files’, and are piloting the issuance of proceedings byemail.152 Additionally, a new cloud-storage system, ‘e-Judiciary’, is beingrolled out to enable document storage and case management online.153

5.4 HM Online Court. The ODR Advisory Group, chaired by Professor Susskind,has proposed the creation of an online civil court for ‘the resolution ofrelatively straightforward debt and damages claims’ valued at up to£25,000.154 The HMOC would appropriately ‘segment’ justice to provide ‘the‘majesty of the court’ when needed and lower cost, lower burden (mostlydigital) channels where not’155 by allowing discretionary referral to CaseOfficers or conventional trial where the dispute concerns important legalquestions or turns on evidence which is best tested orally.

5.5 This addresses the fundamental problems of ‘disproportionate legal cost andgrave disadvantages from litigating in person’156 which prevent access tojustice for individuals and small businesses. The first two tiers of the HMOC(online evaluation and online facilitation) have been described in Chapter 3,and will use diagnostic software to identify a claim and attempt resolution.Disputes which cannot be resolved in this manner may proceed to the thirdtier of the HMOC if they meet the criteria above. This tier employs onlinejudges who decide cases based primarily on electronic documentarysubmissions in an online pleading process, with the possibility of telephoneconferencing facilities. All three tiers should be ‘managed as one coherentsystem with fully integrated databases and software’.157

5.6 It is uncertain whether the HMOC’s rules should be distinct from the CPR ornot, but stability (when cases are referred or appealed to conventional courts)and simplicity (allowing more flexibility in judicial and staff deployment)strongly favours the extension of a revised CPR to the HMOC. Briggs LJdisagrees, arguing that a separate set of rules would be best tailored to

151 CMR Report, at 4.3.

152 CCSR Report, at 3.49.

153 ibid, at 3.51.

154 CCSR Report, at 4.12. The scope and value of the HMOC is open to consultation.

155 CCSR Report, at 1.8.

156 ibid, at 5.106.

157 ODR Report, at 6.8. See 4.10 ff for discussion of software.

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litigants-in-person and would avoid confusion. This argument is, withrespect, unconvincing: a case management rule which allows adoption of aquasi-inquisitorial approach for litigants-in-person at the third tier of theHMOC should enable judges to tailor a trial appropriately, and theprocedural rules imbedded into tier one and two will already be designed forlitigants-in-person.

5.7 Briggs LJ argues that judges in the HMOC should not have the law presentedto them by the parties and implies that the trial will be fully inquisitorial,158

but such a solution is unattractive. Zuckerman argues that while judges havea legitimate managerial role ensuring adequate pre-trial preparation andpromoting effective trial, it would damage the perception and reality ofjudges as even-handed and detached decision-makers to charge judges withinvestigating issues and descending into the arena to test arguments.159

However, effective management of a trial without lawyers requires theadoption of a quasi-inquisitorial role. Judges should be able to questionparties to elicit relevant facts, and should aid both parties by requestingrelevant evidence which has not been supplied. This should not amount tocross-examination of witnesses or challenging a party’s legal case, but shouldremain confined to getting a full picture of the facts upon which legalarguments are made.160 This stretches but does not overstep a judge’smanagerial role, contrary to Zuckerman’s view that intervention to requestevidence could lead to bias, because parties must still identify their claimsand argue that the facts support a conclusion in line with their legalargument.

5.8 Those in favour a fully inquisitorial approach might argue that this places anunrealistic burden on parties to adequately navigate the law, but if legal testsare properly imbedded into the software in tiers one and two of the HMOCand clearly defined by the informational guidance published for litigants-in-person, this formal structure will aid them in the presentation of an argument.The UK Law Society has expressed ‘grave concerns’ that effective use of thesystem would require legal advice,161 but this concern is misplaced: asignificant proportion of advice can be automated, and proportionate pricingfor unbundled legal advice would prevent any required legal advice fromundermining the HMOC. Adversarial trial can be affordable, and Zuckermanpersuasively argues that debate is the best means of reaching a correct

158 ibid, at 6.15.

159 Zuckerman, ‘No Justice Without Lawyers—The Myth of an Inquisitorial Solution’ (2014) CJQ 355,at 359.

160 This follows the continental model, ibid, at 361.

161 Law Society Press Release, ‘Law Society Responds to Pre-Consultation on Urgent Review of CivilCourt Structure’.

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decision because it minimises the influence of confirmation bias andsubjective relativism which can corrode the impartiality of decision-making.162

5.9 The UK Law Society is also concerned that this system would condone themarginalisation of those separated from the internet by digital divides (see4.15 ff). This has been addressed in Chapter 3 and should be unproblematicgiven the existence of local courts: the creation of an HMOC should not bereason for the dramatic closure of courts in large swathes of England andWales, particularly since local courts are still necessary for disputes outsidethe scope of the HMOC. The establishment of ‘Temporary Courts’ in publicbuildings where courts have already closed has been suggested, but not yetbeen fully considered or piloted.163 Lastly, it appears that the HMOC will beArt 6 ECHR compliant as long as parties are given an opportunities to pleadtheir case as part of a transparent process governed by impartial judges.164

(3) Rethinking Conventional Trial5.10 Inquisitorial case management. The Justice Report 2015’s main recommendation

is the appointment of ‘primary dispute resolution officers’165 called CaseOfficers (‘COs’)166 who can do much of the routine case management workwhich occupies judicial time at a much lower price. They will be suited tomost claims in the HMOC and up to the lower reaches of the multi-track,unless the complexity or legal importance of a case makes its management‘dependent for its quality upon substantial judicial training and experience’. 167

COs will be supervised by judges, to whom they can refer ‘genuinely judicial’work.168 A pilot programme using former legal advisers without prior civilexperience to manage a narrow list of tasks appears to be working well,169

162 Op cit 159, at 364.

163 ibid, at 5.129.

164 This will not be the case if the HMOC is compulsory until there is an effective assistance networkor alternative for those who cannot use the HMOC. The implications of Art 6 are being considered byJordi Xuclà, a Spanish member of the Parliamentary Assembly of the Council of Europe. In particular,the Reform Programme and CCSR should consider the implications of appeals from the HMOC,which should occur in the conventional courts.

165 At 2.22.

166 The Report uses ‘registrar’, but the HMCTS Reform Programme and CCSR Interim Report adoptthe title ‘case officer’.

167 CCSR Report, at 4.22. Where possible, such cases should be docketed.

168 ibid, at 7.15. Consultation on ‘how to draw a practical but flexible line between routine casemanagement’ and discretionary decisions for which judicial expertise is appropriate is ongoing,Courts and Tribunals Judiciary, ‘Press Summary of the CCSR Interim Report’ (2016).

169 ibid, at 3.29.

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though the CCSR invites views on how to draw the line between disputessuitable for COs and those which should be managed by judges.

5.11 COs should review party documents which have been filed online throughthe standard forms described in Chapter 3 (claims, defences, witnessstatements) and contact parties by email or telephone for further clarification,information or evidence as required. Parties will be allowed to comment onthe other side’s evidence before the CO recommends ADR or refers the case toa judge. The Justice Report 2015 also persuasively proposes that COs shouldbe capable of striking out claims with no reasonable prospect of success ifthey give reasons, subject to appeal to a judge.170 This is a procedural decisionwhich does not conflict with Briggs LJ’s view that final determination ofsubstantive rights is an ‘inalienable judicial function’,171 even if it ‘effectivelydetermines substantive rights’.172

5.12 ADR. The CO should recommend mediation or early neutral evaluation(‘ENE’) where it may narrow the scope of the dispute or encouragesettlement, particularly since their view can be expressed more openly than ajudge’s. ENE will be more suitable if there is a significant imbalance ofpowers between parties or if the dispute concerns whether proper procedurehas been followed. Mediation is preferable if there is relative equality of armsor the dispute concerns facts or competing interests. The CO should offer tomediate/evaluate for the parties, and if the offer is accepted he or she shouldprovide a written assessment which parties can accept or use as the basis forsettlement.173 The success of ENE in the Financial Ombudsman Service mayserve as a model for training: over 80% of cases are resolved by an individualwho is not legally qualified but has an understanding of the relevant law andis trained to reach a fair and reasonable provisional assessment.174

5.13 There should be no duty to participate in mediation or ENE and costssanctions should not be applied to a successful party who refused to engagein ADR simply on that basis.175 Mandatory mediation is less likely to benefitfrom genuine cooperation, and either process could unduly pressure litigants

170 ibid, at 2.23.

171 CCSR Report, at 4.22. Other procedural decisions include recovery of costs and defaultjudgments, at 7.10.

172 ibid, at 7.10.

173 The result of ENE should be considered when determining costs at the conclusion of litigation if itso strongly indicated that litigation would end unfavourably to the litigating party that it was whollyunreasonable to continue.

174 ibid, at 7.21. COs be trained in ENE in their area of specialisation, which should be listed on adatabase of COs which allows staff to efficiently allocate cases. The success of the Small ClaimsMediation Service (see 4.08) should be a model for mediation.

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who would struggle to fund a failed mediation or ENE in addition tolitigation, undermining their ability to vindicate their rights.176 However,parties should be required to consider ADR where recommended and mustrespond to an offer to engage in ADR.177

5.14 Trial. A dispute should be immediately referred to trial only if ‘no otherresolution is likely to be effective or appropriate’,178 for example, because itconcerns the interpretation of legislation or policy. The CO should informparties if they are missing relevant information or evidence, and shouldprovide parties with appropriate materials outlining what to expect from thetrial process.179 Equally, judges should be provided with a ‘litigants-in-persontoolkit’ of guidance by the Judicial College.180 The court should function in atraditional adversarial manner, although the judge may adopt a moreinquisitorial approach under his or her case management powers where oneor more parties is a litigant-in-person.

5.15 Claims which are higher in the multi-track or too complex for initial casemanagement by COs should be docketed insofar as possible. This minimisescosts, delay, and errors arising from time spent by a judge to familiarise him-or herself with the dispute, and gives lawyers confidence that the courtconducts litigation in a ‘firm, consistent, and knowledgeable’ manner.181

Although members of the judiciary may be reluctant to commit themselves toa certain topic, effective docketing should encourage judges to specialise andjoin a list of ‘ticketed’ judges designated to a category of claim.182

175 Cf. the description of the ADR order in Appendix 7 to the ‘Guide in the Admiralty andCommercial Court’ in Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576; [2004] 1 WLR3002, at [31]. Such a sanction should only apply when the party’s refusal was patently unreasonablebecause a substantial portion of the trial could have been avoided. Cf. the court’s reasoning in Laportev. Commissioner of the Police of the Metropolis [2015] EWHC 371 (QB); [2015] 3 Costs LR 471, where thecourt effectively held that refusal to participate was unreasonable because the parties could havenarrowed some of the dispute.

176 Halsey, at [9].

177 PGF II SA v. OMFS Company 1 Limited [2013] EWCA Civ 1288.

178 Justice Report 2015, at 2.23.

179 The Judicial Working Group on Litigants in Person: Report, July 2013, at 2.8. These materials shouldbe available online and in physical form.

180 ibid.

181 Neuberger, ‘Docketing: Completing Case management’s Unfinished Revolution’ (2012), at 18.

182 For example, the Financial List is a joint venture of the Chancery and Commercial Courts, and‘tickets’ costs judges, as noted in the CCSR Report, at 3.20.

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CONCLUDING REMARKS

6.1 In an effectively post-legal aid civil court system, equal access to justice mayappear to be a pipe-dream. Efforts to simplify civil procedure resulted in astaggering abundance of different rules, directions, and guides, and the fullresponsibility for case management was foisted upon an already over-burdened judiciary. Valiant attempts to end the costs war vastly improved thegross disproportionality of fees paid by losing parties, but failed to addressthe root of this evil, namely the ludicrously high base costs of litigation.However, a growing chorus of voices have considered precisely this coreproblem, and they are reaching a crescendo as the use of technology to reformthe courts presents itself as a viable solution.

6.2 Achieving efficiency without compromising accuracy. Civil proceedings in the 21st

century require the normalisation of ADR, but the importance of trial mustnot be undermined and it must be emphasised that ADR pursues slightlydifferent aims to trial. Trial is concerned with accurate public decision-makingwhich creates precedent, whereas mediation is concerned with reachingcompromise and arbitration with reaching a final decision using a neutralexpert. The model presented in this dissertation strikes a careful balancebetween encouraging ADR when appropriate and ensuring that cases whichrequire judicial clarification on points of law, raise important questions ofprinciple, or are otherwise unsuited to reconciliation or compromise are givendue consideration at a conventional trial. Its emphasis on ADR should not betaken as an invitation for the government to further restrict funding forlitigation or the civil courts. Instead, ADR should be recognised as an efficientmeans of narrowing or settling disputes, thereby decreasing the backlog anddelay which currently afflicts the courts and increasing the time and resourceswhich can be devoted to dealing with cases justly.

6.3 In other words, efficiency contributes towards a functional court system, butit is not an end in itself and cannot compromise ‘the right of both parties to afair trial of the issues between them’ or the expectation of accurate judicialdecision-making.183 Such accuracy and vindication of rights must be the goalof litigation, subject to the caveat that proportionality may legitimately limitthe time spent assessing evidence. This goal is promoted by the civil courtmodel suggested in this dissertation, which emphasises the importance of aquasi-inquisitorial approach towards litigants-in-person. The ability torequest relevant evidence enables Case Officers to recommend aproportionate solution to the dispute and judges to reach more accurateconclusions based on full information. Such individualised attention would

183 Abbey National Mortgages plc v Key Surveors Ltd [1996] 1 WLR 1534, per Sir Bingham MR.

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be impossible without automating self-help dispute resolution andnormalising the use of ADR.

6.4 Efficiency and accuracy are not always at odds, and the expansion ofdocketing in the multi-track will promote both. In Lord Neuberger’s lectureon the subject,184 he notes that the allocation of a dispute to one judgeminimises preparation time, reduces delay, increases consistent and tailoredcase management, and enables the effective supervision of a dispute’sprogress. Docketing can be effectively implemented without major disruptiononce judicial diaries are electronically available to administrative court staff,and should be incrementally introduced based on successful models in theCommercial Courts, using lists of ‘ticketed’ judges who specialise in a certaintype of dispute. This will require a shift in culture, particularly for circuitjudges who enjoy their geographic mobility and the variety of a generalistapproach.185 The increased use of remote case management should mitigatethe problem of geographic location.

6.5 Tackling barriers to justice. Proportionate justice at a proportionate price can beachieved by automating the process of seeking advice and identifying a claim,facilitating initial dispute resolution without recourse to legal advice except asan unbundled service, and allowing certain disputes to proceed to online trialbased primarily on documentary submissions. Costs, which are the primarybarrier to justice, can be reduced by reallocating and automating casemanagement tasks including costs budgeting and encouragement of ADR.Use of Case Officers for this role will enable parties to receive moreinquisitorial treatment if necessary without compromising the impartiality ofa judge at the trial stage, reducing inequality of arms. These steps also addressthe secondary barriers to justice identified by Hazel Genn, includingignorance of procedural rights, lack of confidence in one’s ability to pursuejustice, and reluctance to engage with representatives of the law.186

6.6 Structural reform of the civil courts will take time and money. However, thereis reason to be optimistic on both of these fronts. The government has pledgeda significant amount of funding to implement the proposals of the HMCTSReform Programme, and seems to have recognised the financial benefits of asleek, streamlined, and increasingly automated court system. England canbenefit from the work of the Netherlands and private domestic parties, savingthe time and expense associated with platform development. Legal

184 Neuberger, ‘Docketing: Completing Case management’s Unfinished Revolution’ (2012).

185 Taylor and Fitzpatrick, Evaluation of the Pilot of the Docketing of Files at Leeds County Court andRegistry (2012), at 24.

186 Genn, Paths to Justice: What People Do and Think about Going to Law (Hart, Oxford, 1999).

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innovators are increasingly turning to technology, making it clear that equalaccess to justice is not a pipe dream after all.

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TABLE OF CASES

Abbey National Mortgages plc v Key Surveors Ltd [1996] 1 WLR 1534Airey v Ireland (1980) 2 EHRR 305Aktas v. Adepta [2010] EWCA Civ 1170; [2011] QB 894Atack v. Lee [2004] EWCA Civ 1712; [2005] 1 WLR 2643Campbell v. Mirror Group Newspapers [2004] UKHL 22; [2004] 2 AC 457Coventry v. Lawrence (No 2) [2014] UKSC 46; [2015] AC 106Coventry v. Lawrence (No 3) [2015] UKSC 50; [2015] 1 WLR 3485Denton [2013] EWCA Civ 1537; [2014] 1 WLR 795Golder v UK (1975) 1 EHRR 524Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576; [2004] 1 WLR 3002Home Office v. Lownds [2002] 1 WLR 2450IS v. Director of Legal Aid Casework [2015] EWHC 1965 (Admin); [2015] 1 WLR 5283Laporte v. Commissioner of the Police of the Metropolis [2015] EWHC 371 (QB); [2015] 3Costs LR 471Marcan Shipping v. Kefalas [2007] EWCA Civ 463; [2007] 1 WLR 1864McVicar v. UK (46311/99) (2002) 35 EHRR 22MGN Ltd v. United Kingdom (2011) 53 EHRR 5Mitchell v. News Group Newspapers Ltd [2013] EWCA Civ 1537; [2014] 1 WLR 795PGF II SA v. OMFS Company 1 Limited [2013] EWCA Civ 1288.Rogers v. Merthyr Tydfil County Borough Council [2006] EWCA Civ 1134; [2007] 1 WLR808Rovi Solutions Corp (Costs) v. Virgin Media Ltd [2014] EWHC 2448 (Pat)Simmons v. Castle [2012] EWCA Civ 1288; [2013] 1 WLR 1239Southwark LBC v. Kofi-Adu [2006] EWCA Civ 281; [2006] HLR 33Steel & Morris v. UK (68416/01) [2005] EMLR 15Thomas v. O’Connor [2005] EWCA Civ 1533X v UK (1984) 6 EHRR 136

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