The civil justice reform train: on track near you

The Johnson Fielding Building at the University of Leicester sits in an elevated location, elegant and imposing. The building, like the 37 acres that surround it, was a gift from Thomas Johnson Fielding in 1919 “in the cause of higher education” as the memorial tablet in the vestibule records. Today, the building houses the Faculties of Law and Criminology - home to the University’s “Dispute Resolution Cluster” – a unique catalyst for the study of dispute resolution. Within their ranks are to be found well-known academics, Professor Pablo Cortes and Associate Professor Masood Ahmed. A fitting venue then to host an afternoon seminar celebrating “The Role of [A]DR and Neutral Evaluation in the Reformed Civil Justice System of England and Wales”.

The afternoon of 2 December 2022 saw the great and the good of the civil justice reform movement travel from London and across the country to Leicester. The Ministry of Justice (MoJ) sent a representative from the Access to Justice Directorate of the Dispute Resolution Team, Natasha Widdowson; I had the pleasure of travelling with her on the train there. Our speakers were: Sir Geoffrey Vos MR, Master McCloud, David Pittaway KC, Peter Freeman, barrister, Professor Cortes – and the influential Chairman of the Civil Justice Committee of the Law Society of England and Wales, Brett Dixon. Proceedings were very ably chaired by Professor Ahmed. The Head of Leicester Law School, Professor Sally Kyd, opened the event.

The panel sessions

During the first session the panel discussed the building blocks of the reformed civil justice system. These include changes to the pre-action phase introducing an obligation to engage with [A]DR in pre-action in good faith, putting the management of that process online, mainstreaming [A]DR post-action and what all of this may mean for litigants in person.

The Master of the Rolls emphasised that, what was to be offered is a range of dispute resolution options, each proportionate to the value of a claim. Parties would be guided through pre-action via an intuitive process and offered [A]DR more than once.

In questions from the floor, I asked which of Family, Civil and Tribunals to be covered by the Online Procedure Rules Committee (due to start work this Spring) would see rules promulgated first. The MR’s answer was, all of them.

An equally emphatic reply came to a question from Tim Wallis of Trust Mediation about the perceived continuing legacy of Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, an issue which Professor Ahmed has critically analysed over the years. The MR made clear that as far as he was concerned Halsey no longer held sway. The Court of Appeal may hear Churchill v Merthyr Tydfil CBC (CA-2022-001779) this March or early next term. One of the points in Churchill is whether Halsey’s obiter about mediation not being compellable continues to have force.

The second session saw Professor Paul Almond, Director of Research, speaking about the important work being undertaken by the University of Leicester’s School of Law in the research field.

The panel then considered the role of neutral evaluation in the reformed civil justice system.

Neutral evaluation holds a prominent position in the civil justice system as the only form of [A]DR specifically mentioned in the Civil Procedure Rules, Part 3.1(2)(m). In an August 2019 decision on that rule, Lomax, the Court of Appeal, found that neutral evaluation could be imposed on the parties even if one party was unwilling. (see this columnist’s views here).

David Pittaway and Peter Freeman spoke for Independent Evaluation, the leading provider of neutral evaluation services.  Both Peter and David spoke eloquently about the merits of neutral evaluation as a form of [A]DR that can be more effective than mediation. Neutral evaluation was once the poor relation of mediation but no longer. Neutral evaluation has been chosen as the [A]DR back-stop by the Department of Health and Social Care in its proposed scheme of fixed recoverable costs for low value clinical negligence claims. Against this background, it is unsurprising that NHS Resolution is extending the use of neutral evaluation (4^th bullet, p.11 Strategy 2022-2025) for clinical negligence claims. A representative of the NHS was present at the event.

Challenges

Brett Dixon said there were two challenges facing compulsory [A]DR. The first was the damage caused to the development of the rule of law by diverting so many cases to [A]DR.

Mention of this brought to mind a debate that was lively about 10 years ago when a group of academics, dubbed the Adjudication Romantics, argued civil trials were vanishing due to the use of [A]DR. This, they said, was to the detriment of the good regulation of society. However, such a thesis was not borne out by fact as from 2012 to 2019 the number of civil trials increased.

Perhaps the adjudication romantics are making a comeback in the light of Brett Dixon’s comments. Recently, the spectre of the vanishing trial was exhumed in an article published in Solicitor’s Journal on 19 January 2023 by Simon Garrod, Head of Policy and Public Affairs at CILEX, and available here.  Four days later, on 23 January 2023, Amelia Nice of Doughty Street Chambers, published a blog on her set’s website (here) in similar vein. However, as Amelia points out, “Compulsory mediation would not remove the party’s right to decide if they want to settle, and on what terms…”. Or not settle, she might have added.

The reformed civil justice system will witness fewer trials but those trials that parties want or need to take place will take place. It is important to remember that any form of compulsory engagement with [A]DR does not mean the parties must settle in [A]DR – if the matter does not settle, then the parties are free to continue with the court process/trial. Yet, for those parties fearful of the process, anxious about the prospect of months upon months of their lives being tied up in wrangling, the reformed system will be a more human place better serving the needs of all.

The second of Mr Dixon’s concerns was whether [A]DR could be provided for the huge number of lower value cases (i.e. sub £25,000 by value) which comprise 93 per cent of all cases. Such challenges are susceptible of solution using modern technology supporting [A]DR processes. In this way, mass resolution can be delivered timely in a way expected by citizens of the 21^st century. This reformed system will free the economy of the stranglehold of the backlog of cases. Judges at all levels will have time to devote to cases deserving of their expertise. We shall all be better off.

Conclusion

What is the value of this event? Every opportunity to debate the issues from a practical perspective brings greater understanding of the benefits, and the challenges, that lie ahead and that is valuable.

For my return journey, I was in the company of Master McCloud. Although this took a little longer than usual due to a rail strike, the time, as always in the Master’s company, flew by!

This seminar would not have happened without the sponsorship and support provided by APIL, Temple Garden Chambers and DisputesEfiling. Nor without the University of Leicester’s indomitable Teresa Rowe. Solicitors Journal, of course, was our media partner. I am proud to have played a small part in making this happen. Thank you, University of Leicester Law School and Independent Evaluation for putting on this important event.

I am grateful to Professor Ahmed for reading a draft of this article and making invaluable suggestions. I remain entirely responsible for any errors of omission or commission.

Tony Guise is the director of DisputesEfiling.com, a provider of online dispute management platforms, and for the past 28 years has been a leading campaigner for civil justice reform: Twitter: @CloudArbitrator; linkedin.com/in/tonyguise