PI Brief Update

• No real clues from today on the Autumn Statement reforms but more litigants in person in a simplified process would fit with an increase in the small claims track limit

• Certainly another step towards the widespread use of fixed costs

• Tacit acceptance of the recommendation from Briggs for the proposed Online Court but no resolution of the uncertainty as to how it would work in relation to injury claims

Radical change is needed to modernise all parts of our justice system is the message. It’s a question of “combining our respected traditions with the enabling power of technology” it seems.

It’s also the time for innovation in our justice system, embracing new methods and approaches, not just by judges, but lawyers too. And it’s also about using less combative methods for resolving disputes.

Lawyers especially are expected to become more innovative: simplifying working practices and finding new ways of delivering services to meet the needs of their clients.

Other key hopes are that the use of technology will allow justice to be achieved more quickly. Speed is seen as particularly important in low value cases. Reference is made here to an average 11 month process for resolution of a higher value fast track claim running to trial which is recognised as too long.

And there is reference once again to the previously identified £700m available to the MoJ to modernise the courts.

These are identified as the justice system needing to be “just, proportionate and accessible”.

Justice is said to be a reference to consistent processes applied by a diverse and representative judiciary.

The MoJ have also announced today proposed changes to the pay and working conditions of both permanent and part-time judges which those judges are unlikely to see as positive developments, but which the MoJ believe will increase diversity.

Proportionality requires a saving of time and costs for litigants, as well as speed. Litigants should be able to “shrink their costs” and reduce the impact of legal proceedings on their lives. It is said that proportionality is key in particular to solving simpler disputes.

Accessibility refers to use of a procedure intelligible to non-lawyers.

The MoJ intend to automate and digitise “the entire process of civil money claims by 2020”. This definition would not limit the aim to only debt claims, but would include damages claims faced by insurers as well.

The recent final report of Lord Justice Briggs which we reviewed last month gets an oblique reference today, in that the MoJ say they will build on Briggs’ proposals. But none of the detailed issues thrown up by that report of interest to insurers is considered at this stage.

The elements of the new process identified today are:

• A single online system will be developed to start and also to manage civil cases (as well as criminal cases)

• Some cases will be dealt with entirely online. One category identified as suitable for this are lower value damages claims

• Where hearings are needed they may well be by telephone or video conference

• Attendance at court will be kept for the most complex and difficult cases

• There will be a new streamlined set of rules and a new Rules Committee to oversee them

• People will be encouraged to resolve disputes themselves where possible, and there will be more “signposting to mediation and ADR services”

• “Ordinary people” will be helped by all of this to resolve issues in a “low-key way” and “without needing expensive legal representation”

The MoJ say they will build on measures taken in the last parliament to extend the fixed recoverable costs (FRC) regime. They point to the advantages arising of certainty and proportionality.

They say they are “keen to extend the FRC regime to as many civil claims as possible” and that looking ahead “The senior judiciary will be developing proposals on which we will then consult”.

This would seem to be shining a green light towards Lord Justice Jackson, who in January gave a speech in favour of FRCs applying in claims worth up to £250,000 which we reviewed in this article.

While we need to be aware of a risk of over-analysing the first words from the new ministerial team at the MoJ, we would suggest that today’s news could be viewed as follows:

• There is of course no direct word from today’s publications in relation to the government proposals outlined in last year’s Autumn Statement. However, moves towards setting up a regime which encourages litigants to be able to act for themselves would be consistent with a rise in the small claims track limit, at least from the date that these proposals go live. The date 2020 appears in today’s publications

• The move towards more FRCs looks overwhelming and Lord Justice Jackson (if the task falls again to him) or other senior judges will now being taking the issue forwards on behalf of government. The enthusiasm of the MoJ may suggest that a level above £50,000 will be chosen, as Jackson had also intended. There is no detail yet of the process which the senior judiciary who have been given the task will take, and whether the Jackson FRC matrix will be used as the starting point. The MoJ seem to want an across the board approach to be taken, rather than dealing only with fixing costs in clinical negligence claims, though this may not prevent the Department of Health moving forwards with their own proposals in the short term

• Briggs’ vision for an Online Court up and running by 2020 fits with the MoJ’s expressed aims. But today’s publications do not get into any of the detail, and specifically do not consider how a new Online Court might fit with the handling of injury claims and the existing portals. All of that remains to be considered.