Your career has spanned academia, legal practice, and advising the senior judiciary. How has moving between those worlds shaped how you think about civil justice?
I think there are probably three main things that come from having worked across those different worlds.
First, it gives you a very clear view of different perspectives and different viewpoints. I was in conversation with some people recently who talked about how we tend to have a siloed view of different parts of the civil justice system. If you work only in one part of it, though I’m not saying that’s a bad thing, you can sometimes end up seeing the system only from your own vantage point: the “view from here”. Working across different aspects of the system has helped me develop a broader perspective than I would otherwise have had.
That broader perspective is particularly useful when thinking about reform, and about whether reforms are likely to have the effects that are intended. It allows you to test ideas against how different parts of the system actually function, rather than how we might wish them to function.
The second thing is the importance of practical experience of how the system really operates. There can sometimes be a tendency, particularly from an academic or policy perspective, to take an idealistic view: you draft rules, and you assume they will be used exactly as intended. But that is rarely how things work in practice.
To give an example, not from England and Wales but from the United States in the 1930s: procedural reforms there were drafted largely by academics, who had a very idealistic view of how practitioners would use the rules. They assumed the rules would be used solely for the purposes for which they were designed. In reality, practitioners, quite rightly, use procedural rules to further their clients’ interests. That meant the rules ended up being used in ways that were not anticipated. A more practically informed approach, involving practitioners more closely, might have produced rules that were more realistic in their operation.
The third thing has been exposure to international approaches, particularly through academia and advising the judiciary. Over the last twenty years or so, we have looked to other jurisdictions for inspiration in civil justice reform: to the United States for case management, to Germany for fixed recoverable costs, and so on. Having that international perspective helps you see both what might work and what might not, and it gives you a wider menu of possible approaches. Those three things together, different perspectives, practical experience, and international exposure, have very much shaped how I think about civil justice.
You’ve worked closely with both judges and policymakers. Where do you think the biggest gap lies between how civil justice is discussed and how it actually operates in practice?
I think there are really two gaps.
The first is a perspective gap, and it links back to what we were just discussing. There is a tendency to talk about civil justice as though it were synonymous with the courts, and more specifically with the system that lawyers and judges work in. Lord Briggs made the point, in his Civil Courts Structure Review, that the civil justice system was designed by lawyers, for lawyers. When we talk about civil justice, we often default to thinking about courts, procedure, judges and advocates.
But civil justice is much broader than that. It includes the legal advice sector and how people gain access to advice in the first place. It includes ombudsman schemes, regulatory redress schemes, alternative dispute resolution, and online dispute resolution. If we equate civil justice purely with courts, we miss large parts of the ecosystem through which people actually resolve disputes, or fail to resolve them. So part of the gap is simply how we conceptualise civil justice.
The second gap, which is just as important, is an evidence gap. People have been talking about the lack of a solid evidence base in civil justice since at least the mid-1990s. Hazel Genn raised this issue in relation to the Woolf reforms, questioning the extent to which those reforms were grounded in robust evidence.
When you compare civil justice in England and Wales to systems like that in the United States, the contrast is stark. In the US, there is a substantial body of empirical research, both qualitative and quantitative, on how civil justice operates and how reforms affect behaviour. In family justice, we have something similar in the form of the Nuffield Family Justice Observatory. But in civil justice, there is no equivalent.
That means we lack longitudinal evidence about how different parts of the system function over time, what works, what doesn’t, and why. And that matters not only for identifying what reforms are needed, but also for assessing whether reforms have been implemented effectively and whether they are producing intended, or unintended, consequences.
This point was made as long ago as 1997 by Peter Middleton, when he reviewed the Woolf reforms for the incoming Labour government. He argued that if you are going to implement wide-scale reform, you need an evidence base to assess whether it is actually working. Without that, reform risks becoming a matter of assertion rather than analysis. That remains a major gap in civil justice today.
How would you assess the current state of the civil justice system in England and Wales?
It’s tempting to say it’s a game of two halves.
On the one hand, we have aspects of the system that are genuinely excellent. The civil judiciary in England and Wales includes some of the most respected judges in the world, and that is reflected in the way Court of Appeal and Supreme Court judgments are treated internationally. Our judges are also in demand abroad, particularly in international commercial courts.
The City of London remains a world-leading hub for civil justice. The Business and Property Courts, international arbitration, and mediation are all areas where England and Wales are global centres of excellence. That is something the government is now actively seeking to promote, for example through the recently established English Law Promotion Panel.
We also have an excellent legal advice sector, often working in very difficult circumstances. Despite chronic funding pressures, those working in advice centres deal with complex and often distressing cases with remarkable dedication. The same is true of the court service itself. Court staff are frequently working in underfunded and challenging conditions, but they are committed and highly professional. These are all things we should acknowledge and celebrate.
But there is, inevitably, a “but”. The county court system is not in a good state. Earlier this year, the Justice Select Committee described it as dysfunctional and failing to deliver civil justice adequately, and as being in need of significant repair. It also criticised aspects of the digitisation programme as dysfunctional.
That matters enormously because between 80 and 90 per cent of all civil litigation takes place in the county courts. For most litigants, witnesses, lawyers and judges, the county court is their experience of civil justice. If that experience is poor, then as a society we should be deeply concerned.
If we are serious about civil justice reform, that is where attention needs to be focused: on making the county courts work effectively for individuals, so that access to justice is not merely theoretical but real.
More than a decade on, what has LASPO (The Legal Aid, Sentencing and Punishment of Offenders Act 2012) ultimately meant for access to justice?
I recall being part of a Civil Justice Council working party, chaired by Robin Knowles QC as he then was, which looked at the anticipated impact of LASPO on litigants in person. That group concluded that LASPO was likely to have serious consequences for access to justice, on a large scale, and not by accident but by design.
It anticipated two main outcomes. First, that there would be a substantial increase in litigants in person, with adverse consequences for the conduct and outcome of cases. Second, that many individuals would simply not litigate at all. They would see the system as “not for them” and would, in academic terms, “lump it”: they would accept the harm or violation of their rights without seeking redress.
The evidence since then suggests that these predictions were accurate. There has been a significant reduction in legal aid provision, and a corresponding reduction in access to legal assistance. The number of legal aid providers has fallen sharply, creating what the Law Society has described as “legal advice deserts”, particularly acute in areas such as debt and welfare.
The impact of this is disproportionately felt by the most vulnerable in society. And that raises a fundamental question: should a just society make life harder for its most vulnerable citizens? Just societies do not punch down. Yet that is one of the consequences that has flowed from LASPO.
There are also broader knock-on effects. Amnesty International warned in 2016 of a developing two-tier justice system. The Justice Select Committee noted in 2021 the growth in litigants in person, as predicted. There is also evidence of adverse impacts on individuals’ health, which in turn places additional pressure on the NHS. Reduced access to civil justice does not simply disappear; it ripples across society.
One striking comparison is that, as the Legal Action Group noted as long ago as 2007–08, the annual legal aid budget for civil and criminal justice combined was roughly equivalent to two weeks’ worth of NHS funding. While health funding is vitally important, we also need to recognise that civil and criminal justice prevent and resolve injustice. As a society, we need to reflect on how we prioritise these systems relative to other public services.
What role can the Civil Justice Council realistically play in driving civil justice reform, and where are its limits?
One of the Civil Justice Council’s key strengths is that it is an independent body. It does not have an axe to grind. It brings together experts from across the civil justice system: judges, practitioners, academics, legal advice experts, ombuds specialists, ADR experts, data specialists, representatives of small business and insurance, and others.
Its working parties also draw on additional expert advisers. In the litigation funding review, for example, considerable effort was made to ensure that all relevant interests were represented at a high level. That breadth and quality of expertise underpin the credibility of the Council’s recommendations.
The Council has also long been a trusted convening body. From its early days under Robert Musgrove, it developed a reputation for bringing together disparate and sometimes hostile interests, particularly during the so-called “costs wars”, and fostering constructive dialogue. That remains an important function, supported by activities such as its annual conference, which brings together participants from across the system.
In terms of impact, the Council has had a reasonable success rate in seeing its recommendations translated into reform. Its 2007 report on collective actions influenced the design of collective proceedings in the Competition Appeal Tribunal. Its ADR reports were acknowledged by the Supreme Court in Churchill, helping to move the law away from the restrictive approach in Halsey. Its work on online dispute resolution fed into the background of the HMCTS reform programme. And in terms of litigation funding, the government has recently announced it intends to legislate to implement its two major recommendations.
As for limits, the most obvious is that the Council is an advisory body, not an implementation body. It can make recommendations, but it is for government to decide whether to act on them. Its ODR report is a good illustration. It recommended the creation of a standalone online civil court, “HM Online Court”. Had that been implemented, one wonders whether our digitisation programme would now be in a stronger position, as in British Columbia, where the Civil Resolution Tribunal has been operating successfully for over a decade.
Another limit is resources. The Council has a highly dedicated secretariat, but it operates within tight constraints. That inevitably limits the volume and scope of work it can undertake. Additional funding could enable it to do more, though of course that is a familiar refrain across the justice system.
What opportunities and risks do digitalisation and AI pose for procedural fairness?
If we get it right, the potential benefits are enormous. Digitisation and AI could significantly increase access to legal information and advice, particularly at the early stages of potential disputes, or even before disputes arise.
Civil justice should not be understood solely as the vindication of rights after a dispute has crystallised. It should also encompass prevention: helping people order their affairs in ways that minimise the risk of disputes arising in the first place. The Lord Chancellor’s Department spoke about “legal health promotion” as long ago as 2000. AI-driven tool, chatbots, online portals, automated guidance, could help individuals avoid disputes altogether.
In the courts themselves, digitisation can streamline processes, improve case management, and make litigation quicker and more economical. AI-assisted scheduling tools, for example, are already being used in jurisdictions such as Chile to maximise court utilisation. Translation and transcription tools can improve accessibility for litigants, witnesses, lawyers and judges, and enhance public understanding of court proceedings.
But there are also serious risks. Digitisation and AI are not universal panaceas. Not everyone can access digital services easily, and physical advice centres remain essential. There are also data security risks: court systems must ensure that sensitive information is properly protected.
Bias is another concern. AI systems can embed algorithmic bias or reflect discriminatory training data. That makes it crucial that design and implementation teams are diverse and inclusive. There is also the growing issue of hallucinated material generated by large language models, including fictitious cases and articles. The judiciary must be careful that the use of AI does not undermine public confidence in judgments.
Transparency will be key. Where AI is used by lawyers or judges, it may be good practice-,perhaps even a formal requirement, to disclose whether and how it has been used. Procedural fairness depends not only on outcomes, but on trust in the system itself.
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