Etherton: Demands on civil justice were increasing
The proportion of applications to the Court of Appeal for permission to appeal by litigants in person (LiPs) has gone up by 50% in the last 10 years, the Master of the Rolls has said.
In a wide-ranging speech on civil justice reform after the retirement of Sir Rupert Jackson, Sir Terence Etherton also said the judiciary was considering “the facilitation of settlement” of claims in the Online Court, though it was yet to feature in the pilot schemes.
Promising that costs reform would not stop with Sir Rupert’s retirements, the MR said the demands on civil justice were increasing, driven by continued growth in the numbers of LiPs, growth of the digital economy, the cost of litigation and unmet need.
“First, and most obviously, we see the continued growth in litigants in person as a result of changes to legal aid provision and the cost of litigation.”
Sir Terence said a “significant amount” had been said about LiPs, and the issue had been highlighted by the recent Supreme Court ruling in Barton v Wright Hassall.
“It is one which, perhaps surprisingly to many, is of concern even in my own court, the civil division of the Court of Appeal, where the number of permission to appeal applications brought by litigants in person stood at 42% in the 12 months ended 31 January 2018.
“The comparable figure in 2007/2008 was just under 28%. Reform is needed to ensure that we can deliver justice effectively for this increasing group of litigants.”
Speaking at Liverpool Law Society, Sir Terence said court systems must be simpler and less costly in order to make them more accessible.
“Our civil justice system will, of course, necessarily continue to match process to the type of claim. It will remain the case, for instance, that to deliver properly justice for complex, commercial disputes we will still need court buildings and physical hearings.
“For simpler cases, just as the small claims track today provides a more proportionate process, a more streamlined primarily online approach will apply.”
Sir Terence said the government had “declined to promote” primary legislation needed to set up a single Online Court, covering civil, family and tribunal claims.
Instead the separate jurisdictions would remain, but be accessed by a single digital platform, backed by an online procedure rules committee. Sir Terence said this would also require primary legislation.
While waiting for it to arrive, he said a “shadow online procedure advisory group”, chaired by Mr Justice Langstaff, was considering appropriate rules for online dispute resolution generally, particularly regarding LiPs.
Referring to the Online Court pilot scheme being run by Her Majesty’s Court and Tribunals Service (HMCTS), the Master of the Rolls said it provided “significant benefits” for claimants and defendants, and court administration.
He said one “important” aspect that was being considered, but not yet implemented, was the “facilitation of settlement” of online claims.
“At present, claimants and defendants are informed online, when completing their claim or defence, that they can settle the case by agreement. They are also informed of the availability of mediation services.
“It would not be a large step for a court officer to intervene online or by telephone to facilitate settlement. A more sophisticated way of achieving this might be through some software programme which would provide a structured framework online to assist the parties to reach a compromise.”
Sir Terence said online dispute resolution processes needed to be embedded into the practices and procedures of the Online Court.
He said the judiciary was yet to decide on what kinds of “routine civil work” in the county court would be taken over by case officers.
“It is envisaged that some of these may be legally qualified and others may not. It is still a matter for decision precisely what tasks they will carry out and where, in the court buildings or in the service centres.
“The judiciary will be heavily involved in that decision. What is agreed and clear is that, insofar as they are undertaking any work bearing on dispute resolution, they will be under judicial supervision and control.”
Earlier this month, we reported that the judiciary threatened to withdraw from the Online Court pilot if there were “any further false claims or data” about the project from HMCTS.
It also emerged that the pilot, for money claims under £10,000, could move from invitation-only to ‘public beta’ stage next week.
Perhaps it is that LIPs appreciate that the anomaly that, while everyone is presumed to know the law, judges need appeal courts to put them right when they get it wrong, must exist for a reason.