The Jackson Reforms represented a dramatic shift in the conduct of English litigation, aimed at reducing legal costs and instilling robust case management discipline. Some of the reforms have been quite effective, but not all; and the “top down” programme of increased judicial control has arguably increased bureaucracy, cost and delay in some respects.
So if the Jackson Reforms haven’t been the panacea, what else might be done to bring modernity and efficiency to the court service? Here are five ways in which High Court litigation might become faster, cheaper, and more accessible (some of which are, hearteningly, under active consideration).
1: Embrace E-Working
It is hard to believe that we are still filing physical documents at court in 2014. The administrative burden for court staff and users alike is indisputable. The need for a modern IT system was at the heart of Jackson LJ’s recommendations, and in the recent Chancery Modernisation Review - but the collapse of the old e-working scheme in April 2012 was a serious setback.
The good news is that a new High Court electronic filing system is on the way, albeit not live until late 2015. Electronic filing is only the first step, however. Electronic document management must come next, allowing the court and parties online access to the entire court file, and reducing duplication. An e-bundling pilot is already underway in the Birmingham Mercantile Court, and a similar system will be piloted in the Supreme Court and Privy Council from 1 October. Hopefully these efforts will be extended to cover the entire High Court in due course, and ultimately be expanded to cover the full court file (not just bundles).
2: Streamline CMCs
Active case management can be a good thing, but the administrative burden imposed on parties to facilitate that objective is significant, particularly at the Case Management Conference stage. In the Commercial Court, parties have to produce a case memorandum, list of issues, disclosure schedules, e-disclosure questionnaires, costs budgets, case management information sheets, draft directions orders, and hefty bundles.
These documents are mandated to empower the court to adjudicate on contentious aspects of case management. However, most sensible commercial parties (and their lawyers) should not need to impose on the judiciary in this way. The CMC has become like a video referee in sports – making it all too easy to refer up difficult decisions.
If the CMC was only convened at the specific application of one of the parties, we would undoubtedly see fewer points of impasse between parties concerning case management and directions. CMCs could be avoided entirely in many (if not most) cases. This would free up court time, and relieve the parties of the significant cost burden currently associated with CMCs.
3: Abolish interim appeals
There has been a strong trend away from appeals against interim decisions. In 2013 only 12 such appeals to the Court of Appeal were filed, compared with 149 in 2003. There are good reasons for this. High Court judges are among the best in the world, with competitor jurisdictions like the Dubai International Finance Centre Courts keen to recruit them.
High Court judges can be trusted to decide procedural applications. Removing the ability to appeal against interim decisions would give court users more certainty over costs and timetables, remove potential distractions, and make lawyers more willing to embrace fixed fees for litigation.
4: Shorter documents, shorter rules
Some rule changes have tried to reverse the drift to longer pleadings, witness statements and skeletons. Since April 2013 a new CPR 32(2) enables courts to limit the length and subject matter of witness statements; and the April 2014 revision of the Commercial Court Guide takes an admirably robust approach of imposing fixed limits for key documents, with permission needed to exceed them. The Chancery Guide is more vague: witness statements and pleadings should be “as concise as possible”. Lawyers should work harder to maintain brevity, and the courts should enforce that discipline more robustly.
Meanwhile, the “White Book” of court rules and guidance has ballooned to over 6,000 pages. The Chancery Guide is 207 pages, the Commercial Court Guide 138 pages. Other divisions also have lengthy guides. Clients are paying lawyers to navigate this mass. The Jackson Report urged simplicity in drafting and amending the CPR, and the Rules Committee is doing its best; the recent changes to the Practice Directions on appeals and on costs, for example, are significant improvements. But their to-do list is daunting, and a bold approach might be necessary. There are obvious areas where a clean slate might be appropriate – for example, Part 6 on service. Should practitioners really have to digest 149 pages of text to understand how documents can be served validly?
5: Court consolidation
It is 141 years since the judicature acts united the common law and chancery courts into a single High Court. Yet we still operate numerous overlapping courts for a commercial client to choose between, each with their own quirks and conflicting procedures. Some courts do serve clearly distinct purposes, and justify their own practice and procedure. But for many of the courts, their jurisdictional separation is primarily a vestige of history.
In his Chancery Modernisation Review, Briggs LJ recommended a harmonisation of practice and procedure between the Chancery Division, Commercial Court, and the TCC. These courts are all located within the same premises in the Rolls Building, making the existing differences all the more jarring, and the opportunities for efficiency improvements even greater. One can only hope that this recommendation gains real traction sooner rather than later.
The English legal system has been a commercial success for UK PLC in recent years, leveraging a reputation for high quality, impartial resolution of complex commercial disputes to attract a global client base. Its users expect quick, user-friendly, cost effective dispute resolution. The Jackson Report recognised that demand, and sought to establish more robust judicial oversight of costs and case management. Unfortunately, this active case management has exacerbated the already document-heavy nature of High Court litigation, which paradoxically creates more delays and costs.
The objectives underpinning the Jackson Reforms would be more easily met by focussing on streamlining the litigation process itself. Shorter, simpler court rules and guidance, consistent across all commercial courts. Cases presented without a proliferation of redundant paperwork. Efficient electronic document management so parties can file and courts can access the right documents easily when needed. No wasteful hearings slowing the route to trial. Rationalising disclosure and expert evidence. Court availability promptly when needed.
The potential for efficiencies is huge. If they can be delivered, the English courts could not only cement the loyalty of their existing users: they could make themselves a more attractive dispute resolution forum for a wider, global clientele.