Seven speeches: a round-up of civil justice reforms
By Tony Guise
Tony Guise considers seven key speeches in litigation and ADR
Prologue
If you are confused by the plethora of consultations, reports, Calls for Evidence and speeches about civil justice reform that filled 2021, then this article is for you. In it, I plot a path of the likely direction of travel for the civil, family and tribunal justice system in 2022 and beyond, as set out in seven speeches by the Master of the Rolls in his first year of office, 2021.
This article is in keeping with the second of the Solicitors Journals' ten founding principles: to promote discussion of projects of law reform. This and the other nine principles being proudly published in its first edition, on Saturday 3 January 1857.
The seven speeches are (links embedded):
28 January - LegalTech webinar for Law Society of England and Wales - Reliable data and technology: the direction of travel for civil justice (the LSEW speech)
10 March - International Swaps and Derivatives Association (ISDA) Virtual Annual Legal Forum - Technological challenges for English law and jurisdiction (the ISDA speech)
26 March – University of Hull - The Relationship between Formal and Informal Justice (the Hull University speech)
10 May - London International Disputes Week 2021 - Keynote Speech (the LIDW speech)
17 June – London School of Economics - Recovery or radical transformation: the effect of covid-19 on justice systems (the LSE speech)
28 October - GEMME Lecture - Dublin, Ireland - Mediated interventions within the Court Dispute Resolution Process (the GEMME speech)
10 December - Westminster Central Hall, London – The Civil Justice Council’s National Forum on Access to Justice for those with limited means (the CJC speech)
These speeches convey connected themes of Sir Geoffrey’s vision and his determination to renew the Common Law for the 21st century.
The fourth industrial revolution
We are firmly in the grip of the fourth industrial revolution and, like the first industrial revolution, new ways of doing business arise, with new technologies enabling fast change challenging the old, established ways of doing things. The administration of justice is not an island entire unto itself in this maelstrom of change.
In 1830, a journal called The Legal Observer was founded by Robert Maugham, co-founder and first Secretary of the Law Society of England and Wales (and grandfather of the author Somerset Maugham). Robert Maugham published The Legal Observer until he retired in 1856, when the Legal Observer merged with the Solicitors Journal. The great changes borne of commerce and societal changes in the 19th century were recorded in the pages of these two journals – a tradition continued to this day by the Solicitors Journal.
As in the 19th century, so in the 21st century the Common Law must run to catch up with such changes or run the risk of irrelevance. Sir Geoffrey addressed this issue in his ISDA speech at para 40: “…we should allow English law to do what it does best. It can and will adapt to ever changing commercial situations in the technological space.”
What are the recurrent themes in the seven speeches?
Waggy dogs
What kind of dog? What kind of tail? Sir Geoffrey’s dog has not one tail but many tails. His dog is a kind of back-to-front Cerberus. As Cerberus is said to have three heads, Sir Geoffrey’s dog has three tails. Each tail, in Sir Geoffrey’s view, has the potential to exert an unfair influence on the reforms he contemplates. Which tails wag this dog?
Mediators
In the GEMME speech mediators were the subject of his attention with his clarion call to embrace change. See para 5, for example (and there is more to the same effect):
“I believe that the institutions promoting ADR in general and mediation in particular have really done themselves no favours by looking so narrowly at the processes they advocate. It is more effective to see the various techniques of dispute resolution within the integrated whole of the justice system.”
But mediators are not the only neutrals singled out for special mention. The irrepressible rise of neutral evaluation is also recognised, and encouraged. See para 30 of the LSE speech:
“Other interventions that can be suggested in more complicated cases, include early neutral evaluation either by a judge or by an independent lawyer. That has been used very successfully in the Business and Property Courts.”
This should do much to encourage competition amongst providers. It will not be long before the leading provider of neutral evaluations (Independent Evaluation and Facilitation Services – declaration of interest: we provide the online platform that supports their cases) is joined by others.
Lawyers
In the LIDW speech (see, para 21 et seq.) lawyers have repeatedly been urged to embrace the future and prosper:
“I imagine that some will be thinking that this does not sound good for lawyers at all, since it is likely to enable individuals and small business to resolve disputes without their help.”
A future rooted in a wider range of dispute resolution options than trial, trial, trial? A nuanced, not binary, future in which all dispute resolution options are available to all delivered online, and we are not talking just of Zoom? Lawyers should comfort themselves that this very concern has echoed down the ages since the 19th century, when this Journal reported the same concern about the introduction of the modern County Courts. Yet despite the County Courts, lawyers have prospered, and the country too. As in the 19th century so in the 21st. There are opportunities for all but the reticent, who will, as always, become obsolescent.
Digital disadvantage
The digitally disadvantaged are the last, but never least, of the three tails of this strange Cerberus. The rumbles of concern began to be heard not long after the Hull speech, in which Sir Geoffrey made clear that digital disadvantage was a concern but not a priority. This tail is best described in the GEMME speech at para 21:
“I am certain that special measures need to be taken to ensure that the digitally disadvantaged can achieve the same benefits as those who are less so, I do not think that we should allow the tail to wag the dog. Just as I have started from the position of bulk claims, we should also look at the majority of users in the justice system. Most young people now obtain everything on their smart phones without difficulty and we should not build our future systems, including our future justice systems, without keeping that fact very clearly in mind.”
A significant part of Sir Geoffrey’s CJC speech was devoted to the digitally disadvantaged,who are clearly still a concern for him. It is a concern that is already being addressed by the Ministry of Justice through their work with Law for Life and other support services they have put in place. These services will only grow in expertise and quality as time goes by.
While this is not the end of lawyers, it is certainly the end of the adjudication romantics; academics who resolutely opposed the introduction of (A)DR – and whose votive offering burned most brightly in the first decade of the 21st century, but is now extinguished.
(A)DR online
Zoom? It’s old hat. From 2016 I have argued for online management of the Pre-Action Phase of litigation – and have built such a platform, the first of its kind.
This issue is a regular topic in the speeches, for example in the CJC speech at para 20:
“PAPs and Pre-Action Portals also need rather greater coherence. Many pre-action portals are already in existence. I believe that the Council’s consultation and consequential report, together with the inauguration of the Online Procedure Rules Committee now going through Parliament, will provide a firm foundation for greater cohesion in the pre-action digital space."
In his CJC speech, Sir Geoffrey referred to this as his “famous funnel”. Another creature that populates this MR-sphere is the blue tick – not a reference to the comic book character, but the proposal that the famous funnel should be built by the private sector, accredited to standards that bring the right to participate in the funnel. This has been described in the LIDW speech at paras 18 and 19:
“18. My idea would be for front-end portals to be accredited. Those wishing to be accredited would be required to operate to the highest standards. They would have to provide fair processes, and they would have to ensure that they allowed for integrated ADR interventions designed to bring about consensual resolution. …..
19. I am calling the accreditation of these pre-court portals a kind of “blue tick” that gives consumers and SMEs confidence to use them, knowing that they are properly regulated. If the claimant does not agree to a resolution, the portal will, as I say, enable the case to be transmitted directly into the online court system. Such a blue-tick could also facilitate what I envisage as the ultimate front end, a website to which anyone or any lawyer with any kind of dispute could go. That website would be able to direct the claimant to the appropriate accredited online dispute resolution process.”
The blue tick is not a novel approach. Government is already using the idea in connection with identity verification services provided by the private sector, under a set of standards umbrella. Those interested in reading about this development can read more here.
The economy and continuance of a civil society
The ultimate prize is described by Sir Geoffrey most vividly in a speech which is not amongst our seven. It was delivered at the launch of the CityUK’s Report on Legal Services in November 2020:
“The civil justice system is a vital part of our economic infrastructure. If multinational corporations chose not to export their goods to the UK because our ports built in 1745 were too shallow, we would deepen them or build new ones. Lawyers and judges alike sometimes fall into the trap of thinking of the system of justice as something free-standing. It is not. It is an essential part of our economic infrastructure.”
A thriving economy is good for lawyers, neutrals and citizens alike.
Gaps?
The unmentioned issues in these speeches tell much about the trickier aspects of these reforms.
Funding
In last Autumn’s Budget the Government announced they would spend a further £200m (on top of the £1.4bn already spent) to complete the Courts Modernisation Programme by 2024-2025 (see third bullet on p.101 of the Autumn Budget and Spending Review 2021).
However, this £200m is called a “cross-cutting outcome”. This means the money has to be paid from the budgets of five other Departments of State: Business, Energy & Industrial Strategy, Education, Work & Pensions, the Home Office and the Law Officers Department (see fn. 11 on p.102). It remains to be seen how successful the Ministry of Justice will be in securing the funds from those Departments, without which modernisation grinds to a halt in April 2022.
Neutrals
The mainstreaming of (A)DR brings a need for many more neutrals. Those (A)DR service providers spending their time training neutrals are doing a great service. As a career path emerges, more people will seek to make their living as an (A)DR neutral.
Turkey made mediation mandatory for labour disputes some years ago. The success of that initiative has seen mandatory mediation spread to other civil claim types. To enable this, the mediations are managed online (not just the hearing!), with many more mediators having been recruited and trained by their Ministry of Justice through a central Bureau. England and Wales will have to do the same.
Regulation also needs to be addressed in a way that replaces the current patchwork of regulation by a dizzying and disparate collection of bodies.
To conclude
During 2022, the Ministry of Justice, the Civil Justice Council and the Civil Procedure Rules Committee along with new kid on the block – the Online Procedure Rules Committee – will get to grips with the responses to last year’s consultations and we will begin to see implementation.
Conversation is done, action is the order of the day. And – if resolution does not waver, if funding does not fail, this year could see the beginning of the making of the modern common law.
Tony Guise is the director of DisputesEfiling.com. He is also past president of the London Solicitors Litigation Association: disputesefiling.com; Twitter: @CloudArbitrator; LinkedIn: linkedin.com/in/tonyguise