Calls for ADR to beat impending 'tsunami' of civil claims

A backlog of civil cases, ineffective IT and covid-19-related claims will trigger a “tsunami” of litigation in the civil justice system, a report warns.

“Without alternative dispute resolution (ADR) firmly in the centre of the civil justice system and managed online the civil courts will be overwhelmed”, warned Tony Guise, a long-time campaigner for civil justice reform and author of the white paper.

He said if “the wrong call” is made, the volume of new civil claims will likely overwhelm the civil courts in England and Wales – and “money alone is not the answer”.

The report, Breaking the Backlog and overcoming the Tsunami of civil litigation, was published by DisputesEfiling which is helping to drive effective IT across the civil justice system.

The report is thought to be the first ever attempt to provide an empirical view of the civil justice response to the covid-19 lockdown; the causes of the rising backlog; and the coming “tsunami of litigation” which Guise expects will hit from September 2020.

Guise says a significant portion of claims will likely be brought by companies and sole traders able to afford court fees because of covid-19 support measures for businesses.

While recognising the “many successes” HM Courts and Tribunal Service (HMCTS) has achieved so far, Guise said: “The tsunami starts with the avalanche of cases held back in the county courts and elsewhere within the system.”

There are, for instance, thought to be more than 6,000 items of unanswered correspondence in Birmingham County Court; and there is a 10-week delay at Manchester Civil Justice Centre before correspondence is responded to.

The backlog is being exacerbated by possession cases temporarily stayed as a direct result of the covid-19 legislation.

By 11 June, 23,732 cases had been adjourned because of covid-19 according to HMCTS’ own data; and the case backlog is even greater in the tribunals.

A raft of covid-19 related cases is also expected, including commercial cases based on force majeure clauses and or the doctrine of frustration; a surge of employment cases; clinical negligence claims; claims under health and safety legislation; and judicial review.

Furthermore, the courts’ modernising programme is incomplete and underfunded; there are 12 per cent fewer court staff since 2016 meaning longer court processing times; and the courts have insufficient or ineffective IT.

“Neither Lord Woolf nor anyone else could have envisaged how a novel virus would cause these fault lines to appear so dramatically”, the report observes.

Guise said: “Despite brave and continuing efforts by the judiciary and HMCTS to expand pilots of online platforms, introduce video enabled remote hearings and other efforts to meet the coming tsunami of litigation, the white paper finds that unless more fundamental changes are made with, for example, ADR being widely required and managed online, the civil justice system will be overwhelmed by the end of this year.”

ADR

The report stresses that the search is “for proven solutions which can be applied with imagination and energy and, crucially, live before the end of 2020 or very early in 2021” – but said the government must lead.

It recommends that most, if not all cases must be diverted from the courts and into ADR to manage the backlog.

“However, mere diversion of cases into ADR will not be enough”, the report warns.

“The only way to manage these cases is to streamline the entire process from start to finish… to deploy a platform and use it to expedite cases by using online management of ADR.”

Despite the fact that according to government, there are not enough mediators to support the ADR opt-out in the small claims track (as it originally intended), the report says there are enough ADR service providers to provide ADR in the online civil money claims (OICS) platform.

It therefore calls for an urgent change in government policy toward the ADR element in the OICS.

Further recommendations include appointing and training more ‘neutrals’.

Guise issued a stark warning that the rule of law “risks being upended by covid unless steps are taken now to divert litigation to ADR”.

As the report states: “The rule of law itself may be challenged if citizens cannot achieve swift access to what they consider approximates to justice.

“This applies equally to criminal law, employment disputes, consumer claims and business disputes.”