CJC condemns county court reforms

The Civil Justice Council (CJC) has warned that government plans to divert cases from the county courts by introducing compulsory pre-action directions would be unconstitutional.

The CJC said the directions would 'as a matter of principle and of fact, undermine the constitutional framework and the constitutional settlement as it will place a fetter on access to the courts'.

In its response to the MoJ's consultation on the solving disputes in the county courts, the CJC said: 'Mediation and other forms of dispute resolution have an important role, but where a civil dispute needs to be decided there must be no doubt that the principal arbiter of civil disputes will be the courts and that access to the courts must be unfettered.

'Mandatory pre-action directions, involving a 'one size fits all' approach and delayed access to judicial involvement, are contrary to the active judicial case management principles encouraged by Lord Woolf in the civil procedure reforms. Judges have a fundamental role to play in case management and costs management.

'The consequences of delayed access to judicial involvement can be particularly serious for litigants in person unfamiliar with process.'

The CJC said the county court plans, when combined with the government's decision to implement much of the Jackson report and the legal aid cuts, would have a 'substantial effect' on the numbers of litigants in person.

'The needs of the most vulnerable for face to face expert legal advice and assistance should be recognised and prioritised,' the CJC said.

Diane Burleigh, chief executive of the Institute of Legal Executives (ILEX), said members of the public had the right to go to court.

'We do not believe mediation should be compulsory because we believe in choice,' Burleigh said. 'Litigants in person are something the state will have to cope with.

'Reforms should be taken at a calmer pace and thought through properly,' Burleigh said. 'This is a knee jerk reaction to the removal of legal aid.'

Responding to other parts of the consultation paper, the CJC said the £10,000 limit on cases going through the RTA portal scheme should not be extended without a full and detailed analysis of the risks and benefits.

The council said cases between £10,000 and £25,000 involved more serious injuries and often complex financial losses. They did not fit into the 'prescriptive management' of the RTA portal and were often not capable of speedy settlement.

The CJC said the portal scheme could be extended to employers' and public liability personal injury claims but this would take a 'substantial amount of time to develop and introduce'.

The council recommended that if the portal scheme was extended to medical negligence cases, a full study should be made of similar schemes in Wales.

It agreed that the system of fixed, recoverable costs should be applied to all fast track personal injury claims not coveredby the portal.

The CJC also agreed to an extension in the limit for small claims, but only to £10,000 and not the £15,000 suggested by the MoJ. ILEX believes there is no need for any immediate rise in the small claims limit.

However, the CJC backed the MoJ's desire to increase the financial limit on county court cases from £25,000 to £100,000.

A Ministry of Justice spokesman said the civil court system should only be used as a last resort for solving disputes.

'Our proposals aim to make the system simpler and cheaper for people to use '“ which includes using methods like mediation, if that will help to resolve a dispute quickly and effectively, and reducing case times and costs if a court hearing is still necessary.'