Busting the litigation backlog

The sage advice of Master Yoda: “Always in motion is the future” (Star Wars V, 1980) is worth remembering.

The courts must not be overwhelmed. The rule of law and access to justice must prevail. Just as we protected our NHS, we can protect the civil courts and control the tsunami of litigation.

Imagine for a moment that it is January 2021. How have the civil jurisdictions in England and Wales coped with overcoming the backlog and the tsunami of litigation generated by the pandemic and the lockdown? One vision of that future could project certain scenarios. 

Possession cases

The stayed cases were due to be unstayed on 23 August 2020 but the date has been postponed again. They are now due to become unstayed on 23 September. This will lead to hundreds of thousands of housing possession cases clogging the county courts with lengthy hearings (and even lengthier appeals) on the meaning of at least two aspects of the new practice direction 55C, which reactivates possession claims in social housing cases:

‘Automatically stayed’ – When this phrasing was used in the County Court Rules 1991 Order 17 rule 11 (relating to ending dormant civil cases) a huge corpus of satellite litigation arose over what ‘automatically’ meant. That lesson from history has been forgotten by the drafters. 

Which orders – Further appeals about the appropriate orders to be made when covid-19 is an issue in deciding whether to dispossess tenants of their rented home. Is the end of furloughing schemes a good reason or are the protections in practice direction 55C restricted to those suffering the virus? If restricted to covid-19 sufferers, will the burden of proof rest with those asserting the defence such that a positive test result will be required to avoid a possession order being granted? How many tenants are aware of these nuances?

In answer to questions by MPs during the Rented Homes: End Of Evictions Ban debate in the House of Commons on 22 July, housing minister Christopher Pincher MP denied there was going to be any tsunami of litigation. 

He explained that the government’s solution was mediation: “I am content with the thought that courts have always done what they can, and that they will continue to do so, to mediate in the execution of justice.” Unfortunately, he fails to understand that the courts do not mediate but decide in accordance with the law. Nevertheless, the clear indication that mediation is seen as the way through is welcome. 

Employment and small claims

By January 2021, hundreds of thousands of people could be making claims in the employment tribunals, for example relating to furlough, unsafe offices and improper redundancies.

In the county courts, hundreds of thousands of small claims track cases are on the move, being defended by businesses with no cashflow. Consequently, these claims fall out of the online civil money claims (OCMC) system into county courts, which are fat with paper but lean on IT. The OCMC system already includes thousands of claims for unpaid rent which are now being pursued online rather than the perpetually stayed possession route.

Court infrastructure

The so-called Blackstone Courts will prove insufficient in dealing with this tsunami of litigation because they lack the IT to cope; and the Kinly Cloud video platform (CVP) is not the panacea it was believed to be. CVP proves useful in replicating the same number of hearings that were taking place before the pandemic but tends to increase trial durations as a result of remote hearings taking longer than in person hearings. (For more on this, see the final report of the Civil Justice Council’s rapid review, The Impact Of Covid-19 Measures On The Civil Justice System.) 

All of this adds to the backlog caused by the lockdown, yet this vision of the courts being overwhelmed is not yet reality – and nor does it need to be.

Busting the backlog 

In late June, DisputesEfiling.com (DEF) published the first empirical research into the causes of the backlog of litigation and proposed measures to manage it. Our white paper, Breaking The Backlog And Overcoming The Tsunami Of Civil Litigation In England And Wales, sets out the detail. It makes clear that replacing in person procedures with video conferencing and a bundle-uploading platform will not be enough. More radical restructuring will be required. 

DEF calls for a single platform through which litigation can be commenced, managed and resolved using opt-out alternative dispute resolution (ADR) or by going to trial, but with the entire proceedings online. 

In the civil courts, this involves extending the OCMC from the small claims track to include the fast track, thus bringing in scope all civil claims valued at up to £25,000. 

The ADR element of the platform would be integrated into OCMC and users would be signposted to resources relevant to their problem via an intuitive answer hub. Opt-out ADR was, in any event, due to be brought into the OCMC during this year.

This platform would overcome the litigation backlog by addressing those parts of the civil courts system which cause delay. This end-to-end integration (EEI) of the platform would bypass a major source of delay – arranging ADR meeting dates. The need to coordinate at least six diaries using twentieth century technology, such as the telephone and email, is a grand bottleneck. 

Arranging dates can be achieved much more quickly through a calendar tool in much the same way as booking a washing machine engineer, thus releasing staff for more valuable tasks. This would reduce the cycle time of ADR from four-plus weeks to two weeks. 

There is a place in the new normal of dispute resolution for everyone: human neutrals; human lawyers; and also advice agencies. These provide a vital role in supporting increasing numbers of litigants in person unsure of who and where to turn to for support (especially as landlords turn to the OCMC to pursue claims for unpaid rent).

Remaining obstacles

But there are practical issues to be overcome. ADR service providers (ASPs) are a cottage industry with few cases for many (and often part time) neutrals. A few have seen the way forward and have adopted a single platform through which to manage their business, thereby achieving greater efficiencies in managing more cases and making more profit.  

So, how far are we towards integrating ADR and online dispute resolution (ODR) into the civil justice system?

The biggest obstacle to integration was the approach explained by the Court of Appeal in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002. Article 6 of the European Convention on Human Rights requires access to a fair trial. However, this generation of judges no longer sees the requirement to engage in ADR as a breach of Article 6 – because if ADR fails, one can always proceed to trial.

In three recent cases, ADR was held to be the dominant form of dispute resolution:

• Compulsory neutral evaluation under Civil Procedure Rules 3.1(2)(m) in Lomax v Lomax [2019] EWCA Civ 1467).
• In McParland v Whitehead [2020] EWHC 298 (Ch), Sir Geoffrey Vos held that Lomax may apply to mediation despite Halsey.
• In Bresco Electrical Services Ltd (In Liquidation) v Michael J Lonsdale (Electrical) Ltd [2020] UKSC 25, it was held per curiam that adjudication is an established and successful form of ADR which can be used even if a company is in liquidation.

Then, in four cases decided this year Halsey has been relied on by the courts to inflict swingeing indemnity basis costs orders:

• In EAXB v University Hospitals of Leicester NHS Trust [2020] (D96YJ039 – Kings Chambers’ website) the defendant was refused costs for failing to make any offer at a joint settlement meeting.
• In BXB v Watch Tower and Bible Tract Society of Pennsylvania & Ors [2020] EWHC 656, indemnity costs were awarded against the defendants for the period after their refusal to engage in ADR.
• In DSN V Blackpool FC [2020] EWHC 595 (QB), indemnity costs were awarded in a costs judgment against the defendant from the point the court ordered ADR.
• In Wales v CBRE and Aviva [2020] EWHC 1050 (Comm), the defendants recovered reduced costs from the claimant because the defendants refused to mediate.

Further developments 

Since we published our white paper, further moves have been made including the announcement of the House of Commons’ justice committee’s backlog inquiry (to which we have given evidence). 

Further, the appointment of Sir Geoffrey Vos as Master of the Rolls from 21 January 2021 is a clear signal of where civil litigation is heading. For instance, in a TechNation webinar on 7 July, Sir Geoffrey said “there needs to be greater and much more integration of ADR throughout the process”.

The DEF platform exists to make this happen. It is in use and can be expanded rapidly to meet demand. But are there enough ADR neutrals? Whenever presumptive (ie. automatic) ADR, opt-out ADR or compulsory ADR has been introduced, the first requirements are a platform to manage ADR; and more neutrals to enable the process to work in the twenty-first century. 

The overseas experience is invaluable where backlog clearance has been a big issue for years. Turkey and Greece, for example, have risen to the challenge and trained more neutrals; and the State of New York is also embarking on this course. Programmes for backlog elimination are an established feature in those jurisdictions.

Back in England and Wales, and a group comprising DEF, academics and ADR practitioners have been meeting since July to explore how the pool of predominantly part time and retired neutrals can be expanded. An excellent summary of the recruitment crisis for ADR neutrals can be found in Hunt ADR’s blog at huntadr.com/post/it-is-time-for-the-mediation-revolution-but-are-there-enough-mediators.

This academic group is an informal working party developing ideas about how to address the backlog using ADR. We continue to welcome applications from academia, ADR practitioners and members of the legal profession. 

Busting the backlog

The pandemic has already brought about more civil justice reform in six months than was achieved in the preceding six years. Where there was hesitation to use video conferencing it is now embraced. 

But the litigation backlog has barely begun to bite. It will do so as this year grinds on. To bust the backlog will require everyone working in civil justice to adjust working practices in the remaining months of this year as radically as they did from when lockdown started in March. We have shown it can be done.

Tony Guise is the director of DisputesEfiling.com. He is also past president of the London Solicitors Litigation Association disputesefiling.com