Sizing up

The dawn of a new year presents a suitable occasion to reflect on the past, consider the present and look to the future.

The Civil Procedure Rules 1998 enjoined judges to take hold of cases and timetable them though to conclusion with firmness and rigour. Justice delayed was justice denied. Proportionality is not just a desirable aim but an essential element of civil justice. Judicial case management, the allocation of claims to the appropriate track, the control of experts and costs were introduced, and a brand new set of rules gave us the tools to achieve these aims.

Performance has been mixed. The concept that experts owe an overriding duty to the court and have an obligation to identify why they disagree with each other is to be welcomed. The timetabling of small claims and fast-track trials with the latter generally being heard within a day are all solid achievements. The diverting of many claims to mediation or other alternative dispute resolution processes is generally to be applauded. However, the replacement of legal aid with conditional fee agreements and the increase in court fees to ensure that the cost of running the court service, like the railways, should be met more and more by the consumer, as opposed to the taxpayer, still result in totally disproportionate costs.

Dramatic changes have occurred in family work. In 2000, changes to the ancillary relief procedure increased the importance of judicial case management and the obligation at the first appointment to identify the issues and, thereby, control costs. The new dispute resolution appointment was an innovation requiring the parties to attend 'a meeting held for the purpose of discussion and negotiation', and imposing an obligation upon them to 'use their best endeavours to reach agreement on matters in issue'. And yet, still, too many cases coming in front of us bear costs that the parties with limited assets can rarely afford to spend.

Problems within our modern society cause an increasing number of private children disputes to raise significant issues of child protection (drugs, alcohol, domestic violence and abuse). These inevitably require a court hearing with, in appropriate cases, child protective measures being ordered. 'Safe cases', on the other hand, are now diverted, where possible, down an information and educative/training route.

In public law, recent publicity has questioned whether or not the long detailed investigative process designed to achieve fairness and the best outcome for our vulnerable children results in unaffordable expense and delay which is itself damaging to the children.

Shaping the future

So, what does the future hold? The detailed, scholarly report of Lord Justice Jackson on costs has generally been welcomed. The fall in the volume of civil work may mean that alternative less painful and expensive ways of resolving disputes are being discovered. In harsh economic times many creditors are no doubt taking a more realistic line. But surely insurers could get to grips with credit car hire. Will the amount of recoverable costs be limited? Should the small claims limit be raised, not just generally but in relation to the value of personal injury claims? The pre-action protocol introduced for possession claims has been good but the whole raft of consumer and credit law could be codified into a more accessible user-friendly format. Would compulsory determination of some disputes by written submissions reduce the trauma and expense of a hearing? Would the imposition of (say) a modest £5 fee for a 'fees exempt' litigant limit the distress of those who face unmeritorious clams and reduce the administrative burden on the court?

In family, the Norgrove report recognised that the process of the divorce suit had become increasingly an administrative as opposed to a judicial process. Is society now ready to throw off the last vestiges of conduct and move to the online hub as the place to claim your decree? Can we not devise a shortened procedure for the resolution of modest ancillary relief claims? ('financial remedy lite') whereby the Form E is replaced, initially at least, by a succinct outline of the financial circumstances, a summary of the issues and problems and the solution that has to flow. How many times do we urge husband and wives, mothers and fathers to understand that they are presenting a problem to be solved and not a contest to be won? Mediation can never be the complete panacea but the authority of the court can often assist the parties to accept that they need to learn about the journey upon which they are embarking. Separated parents' information programmes are not expensive and have had positive feedback.

Of course, there will always be those cases where a contested hearing is inevitable. Here in all spheres there is a need to create a process that causes the minimum distress and harm. Surely Norgrove is right when he asserts that, in public law, the aim at least should be to limit the length of the process (itself immensely damaging to children) to six months? And in the days of modern

laptops and tablets, do we really need within our system lever arch file after lever arch file of paper bundles? Information from the police and social services, necessary for safeguarding analyses in family cases, should be made available in a speedier digestible format? Surely, IT, properly harnessed, offers wonderful ways forward of reducing expense and increasing efficiency?

Civil and family justice is always going to be necessary in a civilised society to hold the balance. The task is to ensure that the process is accessible, transparent and affordable while causing the minimum amount of distress and trauma.