Partly as a response to Lord Young’s report last year, the Government is consulting on reforms to the Civil Justice system in County Courts in England and Wales. You may remember that Dave (Lord Young) had a beef with the “no-win no-fee” blood sucking lawyers (I paraphrase – I’m sure they’re all loved and sleep soundly in their beds) potentially fuelling spurious claims out of all proportion to the incident. Because of the way costs can escalate, most claims are settled before they actually reach trial. As it is, previous changes to the law created this monster (unforeseen consequences…).
The consultation is 100 pages of excitement from Ken Clarke’s foreword to the bar code at the end. There is even a Welsh language version, so they mean business. It deals with lots of issues, so I’ll just look at one or two and leave you to surf the rest of this cornucopia of delight. Just like Dave, they’re fed up with the way things seem to be developing. They want disputes to largely be kept out of the Judicial system – the Courts should be the place for resolving the more complex, difficult and intractable issues (like, what should we have for dinner tonight…); people should be encouraged to sort things out between themselves so that it doesn’t get anywhere near a Court (i.e. it’s your problem). Obviously that doesn’t apply to civil wars in foreign states. They want costs to be proportionate and dispute resolution procedures to be transparent.
So, what are they going to do about it? Well, they want to simplify and save people and the courts money. That means imposing fixed costs (as Dave suggested, though he probably got that from someone else). That’s because frequently the recovered costs associated with pursuing a claim are way bigger than the damages claimed. It also means raising the threshold of what is considered a ‘small claim’ and forcing all such small claims to have attempted a mediation process – otherwise they don’t even get a hearing. The ‘small claims’ track is of course the cheapest and quickest option for legal action, so raising the threshold should mean more go down that route.
Now, I know you’re all thinking isn’t this why the Civil Procedure Rules (CPR) were brought into being in 1999 ? Weren’t they supposed to make civil actions (like personal injury claims) easier, more transparent and cost effective. Yes and they partly succeeded – everyone seems much clearer about the process at least (I mean, don’t you? they’re so well written, almost like a Dickens novel). The parties have to abide by so-called pre-action protocols. But these don’t force people to be reasonable – there are few real sanctions if they aren’t. Courts didn’t manage some cases well either (wigs can cause havoc with diaries). Costs were still too high. So someone had the bright idea to try the system that is used for road traffic accidents – which are frequently settled out of court and to fixed fees. In summary applying this principle more widely should make costs more proportionate to the damages being claimed.
I’ll stop there, I’ve already lost interest. Those 100 pages are not for everyone, however enticing. If you do read it though, look out for mention of Sir Rupert.