The Paper Determinations Pilot

The he Paper Determinations Pilot: too rude a hand across the reeds at Runnymede? Apologies for cobbling together two of the most powerful lines from Rudyard Kipling’s poem about the Magna Carta at Runnymede. The combination seemed apt to describe the emotions stirred by this recent attempt to reform civil justice in England and Wales. The chair of the Sole Practitioners Group recently gave an inaugural speech at the commencement of her term of office, during which she is reported to have said about this reform: “It’s atrocious, they’re removing the right to a fair trial.” Clearly this pilot scheme is evoking strong sentiments – yet, so far, little evidence of co-ordinated opposition.

What's the issue?

The issue is whether the pilot breaches human rights legislation: “This Practice Direction … provides for a pilot scheme to be called the ‘Small Claims Paper Determination Pilot’ to test a procedure which will enable the court to direct that a small claim will be determined without a hearing without … the agreement of all parties.” Para 1.1, Practice Direction 51ZC – The Small Claims Paper Determination Pilot, Civil Procedure Rules 1998, as amended (‘the PD’). The human right in question is the right to a fair trial: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly…”. Art 6, European Convention on Human Rights incorporated into UK law by the Human Rights Act 1998.

If there is a breach, does it matter?

The pilot is designed to help reduce the significant and rising backlog of cases – and thereby deliver speedy resolution for hundreds of thousands of litigants waiting over a year, or longer in some courts. For some commentators, this is a step too far – with one remarking that for the first time in 1,000 years English and Welsh citizens have been deprived of their right to a fair trial conducted in public.

The historical context

Attempts to resolve low value claims in a manner proportionate to the sum in dispute have a history. We could go to the County Courts Act 1846, but for present purposes turn to Order 19 r.3 of the County Court Rules 1981, as amended: “Any proceedings in which the sum claimed or amount involved does not exceed £500 shall stand referred for arbitration by the registrar upon the receipt by the court of a defence to the claim…”. eBay’s online dispute resolution system is reported to resolve 60m disputes each year. Those disputes are resolved largely without human intervention. Yet the eBay dispute resolution system is not without criticism about impartiality, customer service efficiency, accountability and transparency. Systems such as eBay’s, the 1981 arbitral system in the County Courts and the pilot represent attempts to resolve the tension between low value disputes and limited resources by producing a system that fairly distributes those limited resources among mass users.

Paper Determinations Pilot

This began on 1 June 2022 and is due to finish on 1 June 2024. Para [1.2] of the PD provides evaluation may be undertaken and an interim report may be published. The pilot applies only in the small claims track (SCT), where cases up to £10,000 in value are resolved, and only in six County Courts: Bedford, Luton, Guildford, Staines, Cardiff and Manchester. Excluded cases involve allegations of property disrepair or those which follow PD 27B, namely allegations of whiplash and associated injuries which are to be pursued through the Official Injury Claim portal. Another limit might be para [4.4], which gives three examples of suitable claims: “(a) flight delay or denial of boarding claims; (b) claims about parking tickets on private land; and, (c) any other claim of £1,000 or less by value where there is no significant factual dispute which requires oral evidence and the issues are not of such complexity as to require oral advocacy.”

Private car park fines and flight delay claims have been found to take up much of the time of district judges who hear small claims trials. One commentator points out there is nothing in the PD to stop a claim of any value (up to the SCT limit of £10,000) from being resolved on paper. That is undoubtedly right – and we must await the outcome of the monitoring and evaluation exercise to see whether this concern materialises. The rationale is in para [4.1]: “A determination without a hearing can be a proportionate and efficient means of determining a small claim in cases where it is not necessary to hear oral evidence or oral advocacy to determine the issues justly.” Where the judge determines a small claim without a hearing under the pilot, they will prepare a note of reasons (which shall include reasons for determining it is suitable for determination without a hearing, if a party has objected) and will send a copy of those reasons to each party. There is no appeal – but the aggrieved can apply for permission to appeal.

The problem

Civil justice today faces the same challenge that arose in the 19th century: how to deliver civil justice in a timely way that does not cost more than the sum claimed. The latest management information (MI) from Her Majesty’s Courts and Tribunals Service indicates the scale of the problem. The MI released on 1 August 2022 is for the period to May 2022 – and shows hundreds of thousands of cases in the SCT waiting 49-51 weeks before a final hearing. That is the figure for overall delay. Some County Courts in England and Wales suffer far longer delays. Barely any change is recorded in the latest MI for June 2022. In some specific courts, the delays are much longer – but this is not reflected in the MI because this data is an average of the time to hearing for each small claim trial held in that month.

The other problem is, none of the County Courts have a complete digital system. Consequently, files go missing, leading to further delays and/ or last minute postponements. The pilot could increase the number of cases in the backlog. Providing written reasons for pursuing a paper determination (para [5.2]) may prove counter-productive, leading to another bottleneck while such reasons are drafted, considered, revised and then published. There is a rule providing for paper determinations with the parties’ consent (see CPR rule 27.10) which was introduced in 2017. Was any empirical evidence from the four years of this procedure considered before launching the pilot?

Three questions

We decided to explore the controversy using less emotion and more empiricism, with our three Freedom of Information (FOIA) requests to the Ministry of Justice and data from the Traffic Penalty Tribunal (TPT). Our three FOIA requests asked about:

• the pilot’s progress;
• evidence for its introduction; and,
• monitoring and evaluation.

It turns out (quelle surprise!) there is little data available about the pilot’s progress. As to the evidence supporting the pilot’s introduction, the MoJ relied on the relevant minutes of the Civil Procedure Rules Committee (CPRC) and the proposal from the Paper Determinations Sub-Committee. The question of open justice exercised both the Sub-Committee and the CPRC when it met on 3 December 2021 to consider the pilot and the question of open justice. The CPRC’s concerns were minuted at para [10] of the minutes for that meeting: “A collection of examples were cited to demonstrate some derogation to open justice principles already exists. For example, in relation to small claims by r.27.10 and by the European Small Claims procedure, which only rarely involves determination after a hearing.”

Finally, as to that monitoring and evaluation exercise, the MoJ response confirms this will be undertaken. The MoJ explain this exercise “… will consider both qualitative and quantitative data, such as volumes and outcomes of cases in the pilot and experiences of those involved with the pilot.” That is good news – and heralds at least the beginning of an era of reform informed by empirical data. Long overdue? Yes, but better late than never.

Backlog reduction

The pilot is another measure intended to reduce the backlog and accelerate resolution. Whether abrogating the citizen’s right to a fair trial is a price citizens are willing to pay remains to be seen. There is a wealth of data readily available about paper determinations. This comes from the TPT, which for the past 20 years has not only worked digitally from end-toend, but has also produced granular data about its users’ experiences of the TPT’s approach to delivering dispute resolution. The experience in the TPT is people with low value claims do not necessarily want a trial, but do want the opportunity to be heard. 70 per cent of the TPT’s awards are ‘eDecisions’ (ie arrived at on the papers through dispute management processes taking place online). Of the remaining 30 per cent who wish to have a hearing, the TPT finds 60 per cent are dismissed, while the other 40 per cent are allowed.

Is anyone online?

The crucial element missing from the pilot is online dispute management (ODM). eBay found managing its dispute resolution process online built both trust and transparency for users. The TPT has found savings of up to £200 per case can be achieved if working digitally – and the length of proceedings is significantly reduced, providing a big time gain. This resonates with our experience of managing ADR proceedings online via the DisputesEfiling platform, where the time from start to finish is reduced by up to half. The landscape of the pilot is likely to be transformed when the pre-action phase of proceedings is transferred to an ODM platform with ADR by design, which will resolve many cases before they go through the pilot.

Conclusion

In the end, is the talk of an ‘atrocious’ breach of human rights just sound and fury, signifying nothing? Time – and the monitoring and evaluation exercise – should tell. It is hoped the CPRC publishes the outcomes of that exercise, so a shared understanding can be arrived at about whether this latest experiment in new forms of resolution is worth the candle.

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 and linkedin.com/in/tonyguise. Thanks to Caroline Sheppard OBE, immediate past chief adjudicator for the Traffic Penalty Tribunal, for her comments on a draft of this article