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;
• Is the backlog of cases reducing? Using empirical data in June 2020, we demonstrated the scale of the backlog in the CFT; and
• What are the views of users such as judges, lay users, lawyers and administrative staff?

Amidst the gloom, good news

Understandably, much recent comment and press coverage has focused on the NAO report. Barely any coverage has been paid to another publication that was issued on the same day (23 February 2023). This is the chair’s summary of proceedings at the strategic engagement group meeting, which was held on 14 February. The summary can be found here and is well worth reading for the latest news of positive progress regarding the modernisation programme.

From that summary we gain a different perspective. It states that the online civil money claims (OCMC) service and the damages claims portal (DCP) continue to be built out to encompass the entire court journey. 

Towards a brighter tomorrow

Digitisation of CFT is a laudable ambition which has been, at times, badly managed, but despite that it is delivering significant achievements. Flagship examples are the OCMC and DCP, platforms that HMCTS built from the ground up. 

Digitisation of the pre-action phase of CFT proceedings is coming. This next stage is moving forward delivered by the private sector using platforms, such as DisputesEfiling (DEF). 

Onward!

Before we begin lamenting what could be the passage of 30 years to deliver effective IT for CFT, let us retain a sense of perspective and history.  It took 35 years to fuse common law with equity! 

Tony Guise the director of DisputesEfiling.com
disputesefiling.com