The civil court reform programme – on the rocks?

According to the National Audit Office (NAO), the civil court reform programme is running out of time and money. But, will more of either be given?

Big projects solve big problems

I am fortunate, or burdened, by having been closely involved in the campaign to introduce effective IT into the civil courts since the ideas first began to coalesce around 1994, almost 30 years ago. By civil courts I mean the courts dealing with civil, family and tribunal (CFT) matters, otherwise known as the CFT jurisdiction.

The publication, on 23 February 2023, of another NAO report on what has been called since 2016 the modernisation programme, was more excoriating criticism of a project seemingly doomed.  Issues identified by the report include:

• over-runs on budgets;
• poor (or missing) specification of work;
• poor execution of work;
• work done having had to be scrapped;
• delivery timetables described as ‘fantasy.’

These criticisms are taken from the report, but are common to almost all ‘big projects.’ 

The same criticisms can be found in NAO reports about:

• the building of the British Library (24 years overdue when it opened in 1997, using what was then cutting-edge technology and £46m over budget);
• Crossrail (five years overdue, cutting-edge technology featured again and £4bn over budget).

Should we be shocked that the modernisation programme shows history repeating itself?

The modernisation programme is unprecedented, but entirely expected of the world’s leading common law jurisdiction. When completed from pre-action to enforcement, the system will free up money locked in disputes generating profit and tax receipts.

Cost-benefit analysis

What are the benefits? Faster cases from start to trial? Increased tax receipts? Or a reduction in unit cost? This is the test Her Majesty’s Courts and Tribunals Service (HMCTS) adopted during the covid-19 pandemic to assess value for money. 

Once the pre-action phase is digitised (see a discussion about this next stage of the reforms below) with mandatory mediation in pre-action, the number of CFT cases will reduce significantly. This means the unit cost will increase. A perverse outcome but one already observed, namely when the number of issued cases fell during lockdown, see para 3.6 on p.43 of the NAO report.

Utilitarianism is the key to showing value

All reform should realise the greatest utility or happiness for the most people. 

In place of unit cost, I suggest three tests or points of coherence to evaluate whether the modernisation programme delivers value for money and tangible benefits:

• Are cases moving through the system at a quicker pace? The time to final hearing data is already available as a benchmark;