As Sir Geoffrey settles into his new role, we can take a glimpse into what awaits in his in-tray stacked high with Civil Justice Council (CJC) final reports awaiting action.
First, it is worth looking at three issues that will define his tenure as Master of the Rolls (MR): funding civil justice reform, IT and civil justice and alternative dispute resolution (ADR).
The quickest way to understand the scale of the challenge regarding funding the modernisation (digitisation) programme is – there is no funding.
The 2015 financial settlement, with its £1.4 billion, has run out and HM Treasury seems less than keen to meet Ministry of Justice (MoJ) demands for more cash. It’s not that the Treasury has said ‘no’; it’s that it refuses even to consider whether to say ‘yes’ or ‘no’. And at the time of writing (mid-February 2021) we are still waiting to hear.
Challenge 1: Find more cash – Every attempted reform hangs on more funding. The MR will be forced to become creative if there is no more cash. Without more funding, the MR’s preferred ‘single funnel’ approach leading all users to the right digital platform looks stifled at birth.
The MR knows the backlog in civil justice is growing at pace and the civil justice statistics due to be released in early March will confirm only too graphically how little has been done thus far to bust the backlog.
Challenge No 2: Begin a dialogue with the private sector – If the MR is to bust the backlog and introduce effective IT into civil justice, there will need to be much more ADR and much greater integration of ADR into the civil justice system – and all of it online too (as Sir Geoffrey explained during a Tech Nation webinar in summer 2020).
Toward the end of last year, legal futurologist Richard Susskind and I agreed the only way through will be to have more IT delivered by the private sector which integrates with the systems already developed by the MoJ, the Motor Insurance Bureau (MIB) and Thomson Reuters to deliver the kind of end-to-end digital civil justice system that Sir Geoffrey wants.
In a recent interview, the President of the Law Society of England and Wales, David Greene, asked the MR about his plans for introducing compulsory ADR. The MR indicated that the CJC would be asked to explore this.
I imagine that means another consultation. This was flagged by a CJC survey that closed on 18 December 2020 about the terms of reference for a consultation about the pre-action protocols (PAPs). This included digitisation of PAPs and the use of “quasi-compulsory” ADR at the PAP stage.
Challenge No 3: Introduce compulsory ADR and fast – back to those moribund CJC final reports.
One recommendation in the ADR report was for the establishment of a website, to be called ‘Alternatives’, to act as an online hub for information about ADR. At the JALC’s October 2019 meeting, this recommendation was considered and a preliminary discussion had with the MoJ, whose representative explained there was “a severe lack of funding – austerity plus”. This does not augur well for the future funding of the modernisation programme.
Will there be a Modernisation GoFundMe page? Another rallying call for more pro bono activity by the profession?
In next month’s column, I offer a direction of travel that can overcome these challenges – fast and without a GoFundMe page.
Tony Guise is the director of DisputesEfiling.com. He is also past president of the London Solicitors Litigation Association