The times they are a'changing: civil procedure reform
By Tony Guise
Tony Guise considers the effects of the Judicial Review and Courts Act 2021 on litigation
On Thursday 28 April 2022, Royal Assent was given to the Judicial Review and Courts Bill 2021 (the Act). In provisions largely overlooked by the press and politicians alike, Chapter 2 of Part 2 of the Act provides for the biggest reform of English and Welsh civil procedure for 150 years.
To paraphrase the words of Lord Leggatt and Lady Rose in the opening paragraph of the UK Supreme Court’s dissenting speech in Bott & Co Solicitors Limited v Ryanair DAC  UKSC 8 (Bott): “…a small but important piece of the jigsaw of [the] litigation landscape” just slotted into place – but of Bott, more later.
The scope of the changes
Chapter 2 of Part 2 introduces striking new pieces to that jigsaw. The most significant are summarised below.
The Act enables the creation of rules for online procedure in courts and tribunals for the disposal of cases by electronic means which: ‘support the use of innovative methods of resolving disputes’ (s19(3)(d)).
The online procedure is to apply to ‘specified kinds’ of proceedings. These proceedings are another innovation because this will be the first time that rules are made not by jurisdiction-specific rules committees but by one committee for these jurisdictions (s20(1)):
(a) Civil proceedings in England and Wales
(b) Family proceedings in England and Wales
(c) First-tier Tribunal
(d) Upper Tribunal
(e) Employment Tribunals
(f) Employment Appeal Tribunal
Thus, this is encompassing all Civil, Family and Tribunal (CFT) proceedings with a cross-jurisdiction rule-making body for the pre-action phase. This is a remarkable innovation – the scope of which is not diminished by the requirement in s32 of the Act to obtain the concurrence of the Lord Chief Justice (for Civil and Family) or the Senior President of the Tribunals.
CFT and the OPRC
The CFT scope of the Online Procedure Rule Committee (OPRC) prompted some concern among Parliamentarians, including Lord Pannick, who was concerned this power may: “allow for legal disputes, if the Online Procedure Rule Committee so authorises, to be conducted entirely electronically” [Lords Hansard, 24.02.22, col 405]. Lord Wolfson, then Parliamentary Under-Secretary of State at the Ministry of Justice, assured him this power would initially be limited to ‘money claims’ up to £25,000 – and any further extension of this already wide scope would be subject to Parliamentary review via affirmative resolution (in a letter of 7 March 2022).
The OPRC is the body charged with making Online Procedure Rules (OPR) – and is composed of members, not unlike other rule-making committees. Section 4(b) requires the Lord Chancellor to appoint:
‘(c) one person who has experience in, and knowledge of, information technology relating to end-users’ experience of internet portals.’
This is not someone with experience and knowledge of the technology involved in ‘internet portals’ – but of ‘users’ experience’ of such portals. This will be an interesting appointment – and one perhaps challenging for the successful candidate which may prove a ‘poisoned chalice.’ From where is such experience to be gained, on what basis – anecdotal or empirical? If empirical, from what sources will (or should) the data come? The role presents an exciting opportunity to move civil justice reform away from anecdote on to sounder foundations, with data-led change.
s24 provides power to make provisions about dispute-resolution services. This was a clause introduced at the Committee Stage in the House of Lords, surprisingly late in the Bill’s passage. Another radical power – best understood by understanding what the Act says amount to dispute resolution services.
In Committee, s24 was described by Lord Wolfson as a: 'modest but important” provision. Important – certainly, but modest, perhaps not. s24 services are services which are: ‘accessible by electronic means for facilitating the resolution of disputes without legal proceedings.’ In other words, the electronic management of the pre-action phase – and in particular [A]DR, via portals. Until the Act, none of the rule-making bodies have been authorised to make rules for the pre-action phase, which has been managed via guidance known as Pre-Action Protocols (PAPs). This all changes following the passage of the Act.
The OPR will:
- Require portals to transfer information held for the purposes of an online dispute-resolution service to a court or tribunal by electronic means (s 24(1)(a)). This means the Pre-Action Portals must transfer data to HMCTS portals, such as OCMC and DCP. Transfers will be achieved via APIs – a step already on HMCTS’ development roadmap – and which process is described in a recent speech by the Master of the Rolls here (in para 11);
- Enable a court or tribunal to take into account pre-action conduct by parties and which will provide for summary strike out or stays for failure to follow the new pre-action online rules (s 24(1)(b)); and,
- Direct users to approved portal providers and the services they offer possibly via an online directory in the Digital Funnel. This is the panel of providers gaining the coveted Blue Tick accreditation of which the Master of the Rolls spoke in speeches during 2021 (s 24(3)).
One of the issues causing the most controversy in debates was the plight of the digitally detached – whether by reason of finance, want of ability, or disability. s29 imposes a duty to make support available for those who need it. HMCTS provides support for its own portals using a third-party provider: We Are Digital. Expect similar support services to be required of the private sector providers accredited to deliver dispute resolution services in the Digital Funnel.
The Act heralds the beginning of the movement of the action in dispute resolution from litigation to pre-action. It is a move for which I have argued since 2016 – and it cannot come a moment too soon to reduce the civil courts’ enormous backlog and provide proportionate and appropriate dispute resolution.
Into this heady moment step the Justices of the UK Supreme Court (UKSC) with their decision in Bott. I mentioned we would return to the decision. Bott, together with an earlier decision of the UKSC in Gavin Edmondson Solicitors Limited v Haven Insurance Company Limited  UKSC 21, make clear that solicitors may recover costs for significantly contributing, or being instrumental in contributing to, the recovery of a fund of money, despite there being no court proceedings or discernible dispute. Lady Arden says at para 141 of her speech (p.44): “…it is an important aspect of the role of the solicitor these days in contentious matters that he works as much to keep his client out of court as to support him when he is in court.”
Additionally, following their Lordships’ decision in Bott, the law as to costs recovery via the solicitors’ equitable lien now reflects this reality. These decisions clearly pave the way for solicitors to work online during the pre-action phase, safe in the knowledge they can recover their costs. Both Bott and Edmondson concerned pre-action work undertaken online. Litigators should see these developments as an opportunity to grow their practices.
Increasingly I hear litigators opine: ‘don’t worry, it’ll probably never happen’ about the large-scale settlement of cases in pre-action. This column tries to show change is coming. As Lord Wolfson said during the House of Lords debate in Committee: “civil justice is going to change.” (col 407).