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Civil Justice Council attacks ‘unconstitutional’ county court reform plans

4 August 2011

The Civil Justice Council (CJC) has warned that government plans to divert cases from the county courts by introducing compulsory pre-action directions would be unconstitutional.

The CJC said the directions would “as a matter of principle and of fact, undermine the constitutional framework and the constitutional settlement as it will place a fetter on access to the courts”.

In its response to the MoJ’s consultation on the solving disputes in the county courts, the CJC said: “Mediation and other forms of dispute resolution have an important role, but where a civil dispute needs to be decided there must be no doubt that the principal arbiter of civil disputes will be the courts and that access to the courts must be unfettered.

“Mandatory pre-action directions, involving a ‘one size fits all’ approach and delayed access to judicial involvement, are contrary to the active judicial case management principles encouraged by Lord Woolf in the civil procedure reforms. Judges have a fundamental role to play in case management and costs management.

“The consequences of delayed access to judicial involvement can be particularly serious for litigants in person unfamiliar with process. The consequences can also be particularly serious in terms of cost as matters proceed without judicial focus on their direction, their management, or the proportionality of what is being done.”

The CJC said the county court plans, when combined with the government’s decision to implement much of the Jackson report and the legal aid cuts would have a “substantial effect” on the numbers of litigants in person.

“The needs of the most vulnerable for face to face expert legal advice and assistance should be recognised and prioritised,” the CJC said.

“Without legal advice and support, unrepresented litigants, who are often first time players, are exposed to the greater expertise of institutional players and a heavy and inappropriate burden is laid on the mediator.”

The CJC said the £10,000 limit on cases going through the RTA portal scheme should not be extended without a full and detailed analysis of the risks and benefits.

The council said cases between £10,000 and £25,000 involved more serious injuries and often complex financial losses. They did not fit into the “prescriptive management” of the RTA portal and were often not capable of speedy settlement.

The CJC said the portal scheme could be extended to employers’ and public liability personal injury claims but this would take a “substantial amount of time to develop and introduce”.

The council recommended that if the portal scheme was extended to medical negligence cases, a full study should be made of the Welsh Assembly’s ‘speedy resolution’ and ‘redress’ schemes.

However, it agreed that the system of fixed, recoverable costs should be applied to other fast track claims.

The CJC also agreed to an extension in the limit for small claims, but only to £10,000 and not the £15,000 suggested by the MoJ.

Responding to the proposal to introduce compulsory mediation information sessions for all county court cases, the council repeated that access to the courts was not a privilege but a fundamental right.

It backed the MoJ’s desire to increase the financial limit on county court cases from £25,000 to £100,000.

However, the CJC “strongly opposed” plans to extend the authority of court judgment orders to enable creditors to apply directly to third party enforcement providers, such as bailiffs.

The council said the sector was “not in a position to provide an adequate service” and advice agencies dealt with complaints about it on a daily basis.

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