Judicial Review and Courts Bill: third time lucky for Online Procedure Rules?

2 Oct 2021|Opinion|Add your comment

Tony Guise critically considers the effect of the Judicial Review and Courts Bill on procedure rules

The civil litigation industry is about to undergo a change as far-reaching as that which swept away the old, outdated working practices that dominated Fleet Street in the 1980s.

Senior Judiciary, working with the Government, are about to implement changes which will mean:

Much more of:

Fixed recoverable costs
Rolling reform
Higher court fees
ADR
Online management of ADR processes (not just video enabled meetings)
Movement of the action in litigation from trial to Pre-Action

Much less of:

Costs drafting work (with one senior costs draftsman recently predicting thousands of redundancies)
Civil Justice Council co-ordinated consultations
High cost lawyers bringing and defending low value claims
Court fee receipts for Her Majesty’s Courts and Tribunal Service (HMCTS) with the shift to Pre-Action

Significant for these reforms is the Judicial Review and Courts Bill 2021 (the Bill) – currently before Parliament, and awaiting a date for its Second Reading. The Bill provides wide-sweeping powers to introduce rules to be drafted by a new Online Procedure Rules Committee (OPRC). – radical in having a vast jurisdiction, with objectives unique amongst rule-making committees.

The IA:

As the Impact Assessment (IA) for the Bill makes clear:

“The aim of the OPRC is to provide simpler rules for online procedures in civil, family and tribunals jurisdictions…the government considers that a new OPRC will help enable a culture change in the way rules are developed, that will better fit with the evolving nature of technology.”

(https://publications.parliament.uk/pa/bills/cbill/58-02/0152/ETCoronerandOPRCImpactAssessmentfinal.pdf)

What clearer signal that radical change is on its way than an IA declaring the Bill’s object is to bring about “culture change” using “technology”?

As for the role of lawyers, the IA says:

“….To the extent that the OPRC allows for court users to resolve disputes without the support of legal services providers, we assumed that solicitors and other approved professionals will be able to substitute the time they currently spend on dealing with these cases with other work of a similar value resulting in no net loss of income.” (p.3

These words also appeared in the IAs for the ill-fated Prison and Courts Bill 2017 and the similarly ill-fated Courts and Tribunals (Online Procedure) Bill 2019. Both of those Bills were lost to the dissolution of Parliament for General Elections. Given the present Government’s large majority, it would seem that it will be third time lucky for the Online Procedure Rules.

The anticipated redundancy of lawyers within the system led the legal profession to rise up – if not quite in open revolt than something close to it. Yet technological progress always replaces one set of workers with another, creating business opportunities for others along the way.

The Bill’s rationale is borne of frustration with the slow pace of modernisation, and a growing realisation that amongst the world’s leading jurisdictions, England & Wales is being left badly behind, as p.8, para 25, makes clear, the slow pace of reform hitherto experienced:

“…will not…deliver the level of change needed and at the pace required, either in terms of delivering the system-wide improvements needed by court users or the reduced costs needed to ensure that the system delivers justice in a proportionate and sustainable way.”

The aims are set out in p.10, para 37:

“…making it easier for parties to resolve disputes earlier using effective triage services and online dispute resolution, or via a mediated settlement, so reserving judicial time for only the most complex cases.”

This involves new rules which “express a greater emphasis” (meaning, mandatory?) use of ADR and early dispute resolution.

The IA rightly leaves out of its reckoning the cost of digitising services. This is because, the IA says, such digitisation is already funded through the HMCTS Court Reform Programme (p.13).

However, the digitisation of pre-action was never in scope when the negotiations for the £1.4bn funding took place between the Ministry of Justice and HM Treasury in 2015. Indeed, that funding has run out and further funding is the subject of lobbying of HM Treasury by the Lord Chief Justice.

Overall

Digital pre-action must be provided by the private sector. The Master of the Rolls has indicated that is the way he sees further digitisation being achieved. That makes for a pragmatic solution and may even achieve its objective, provided the specification is clear and ambition does not derail realisation. In next month’s column, I look at the jurisprudence underpinning the reforms.

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

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