In his first speech as Lord Chancellor in June, Michael Gove MP appeared to be seeking to build bridges with the legal profession following cuts implemented by Chris Grayling via the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Relationships between the Ministry and stakeholders may be warmer, but it is still clear this Government remains committed to further significant change for civil disputes.
In mid-July Mr Gove told MPs that among his top priorities - along with Human Rights Act reform - was making sure that courts work more efficiently. By the end of this Parliament - 2020 - efficiency measures probably include:
• a managed programme of closure of some court facilities across England & Wales
• further increases in fees for starting claims in court and for making applications
• implementation of Civil Justice Council (CJC) recommendations for HM Online Court (HMOC), and
• extension of fixed legal costs to areas such as clinical negligence and industrial deafness.
Family and criminal justice are experiencing similar pressures. Efficiency reforms to family justice began in April 2014, including the single family court and compulsory mediation information. In January 2015 Lord Justice Leveson presented 56 detailing recommendations aimed at improving efficiency in criminal justice, proposing wider usage of internet-based videoconferencing and hearings. The CJC’s firm recommendation that HMOC should be set up was made just a month later, in February 2015.
Michael Gove’s speech in June linked all these strands and referred to the “huge opportunity to take many of these disputes online … using plain English rather than legalese, replacing paper forms with simple questions online, and automating much of the administrative process”.
Few would object to these goals for further efficiencies, but securing funding necessary to achieve them could be more awkward. The spending round due in November will be tough: departments, including MoJ, have been asked to model real terms savings of 25% and 40% by 2020. Nevertheless, three early themes stand out from the “huge opportunity” for efficiency.
• Access to justice. Citizens, businesses, injured people and insured policyholders will engage with a civil dispute system that is easy for them to reach. Proposed court closures suggest access to justice will shift from physical presence in court premises or lawyers’ offices towards online service, delivery via videoconferencing and other applications. Lord Justice Briggs’ review of the structure of civil courts in England and Wales – his interim report is due by end 2015 – could have a key role in scene-setting.
• Follow the money. Efficient dispute resolution services need investment. Funds for delivering HMOC would have to be prioritised by MoJ, possibly allocated from savings made as ‘real’ courts close. Estimated additional funding from increased court fees will not necessarily reach levels assumed by the Ministry as some stakeholders may prefer arbitrations or mediations to paying the higher charges.
• Systems integration. Delivery of anything like a fully-fledged online court would have to be supported by robust and properly-tested technology. This is a serious challenge for courts and users. Recent measures - such as the Claims Portal for injury cases and the MedCo platform for whiplash reports - have experienced ‘teething troubles’ from which we might all learn. While co-operation across the industry on these sorts of projects has improved, the pace of change may need to accelerate.
In reality, we are still some way from ‘virtual’ dispute resolution being the norm in civil cases, but a process of change has clearly begun, driven firmly by: pressures on the MoJ’s budget, the general trend towards online public services, and (probably) by the relative success of the Claims Portal in its limited fields.
It is certainly arguable that efficiency reforms to civil process, structures and costs that will be tackled by 2020 may be more fundamental than any of the issues that the last Parliament addressed via LASPO. Early implementation of HMOC and the likely outputs of the Briggs review should provide more shape to this ongoing debate in which change – as much as ever – remains a constant.
Alistair Kinley is director of policy and government affairs at insurance and risk law firm, BLM.
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