Our archaic courts won't compete forever
After the upheaval of the Jackson reforms in 2013, civil litigators might have been forgiven for thinking there would be a period without further substantial changes while things bedded down.
However, with several pilot schemes of new procedures currently underway and wide-ranging proposals for further changes arising from Lord Justice Briggs's interim report there seems to be no let-up in the pace of change.
Most of this is led by customer demands: at one end of the spectrum, the courts of England and Wales must provide access to justice for all, in a world where shrinking budgets mean old methods are no longer considered viable. At the other end of the spectrum, London's courts must compete with other forums for dispute resolution and provide a user experience that will keep international businesses coming back to London to resolve their disputes.
So, we now have more options than ever before as to how to conduct a piece of civil litigation: in the Rolls Building courts (including the Commercial Court, Chancery, Patents Court, Technology and Construction Court, and Mercantile Court) we have a shorter trials scheme, a flexible trials scheme, and a Financial List allowing institutions to test important legal propositions without requiring there to be a winner and a loser in a specific case.
A long-awaited shift to electronic case management looks like it may finally happen over the next few years, while LJ Briggs proposes an online court for lower value claims and case management being moved from judges to case officers. Changes to procedures in the Court of Appeal are also likely, including the removal of the right to an oral hearing for permission to appeal after refusal on the papers and increased use of two-judge panels.
As well as staying abreast of procedural changes, practitioners need to be aware of the different options, so as to be able to advise clients on what will work best for their particular dispute. The Jackson reforms gave the courts the tools to manage cases according to their value and complexity, but there is little evidence that the full array of tools is being used, beyond mandatory costs budgeting. The shorter and flexible trials pilot schemes now allow parties to opt for a more streamlined process, avoiding excessive disclosure and limiting oral evidence to the critical issues.
If embraced by enough parties, these could ultimately provide something of a middle ground between the complexities of White Book procedure on the one hand and arbitration, where most of the decisions on how the case will proceed are made after the process has begun, on the other. Electronic working will inevitably raise new issues, but it is long overdue: our court system is starting to look archaic compared to foreign systems that compete for international litigation.
Ed Crosse is a disputes partner at Simmons & Simmons and committee member of the London Solicitors Litigation Association @SimmonsLLP www.simmons-simmons.com
Ed will address which procedures are best suitable for your case and key features of the electronic working pilot scheme at Solicitors Journal Live 2016. For more details visit bit.ly/SJLIVE2016