Better Days

Well my soul checked out missing as I sat listening
To the hours and minutes tickin’ away
Yeah just sittin’ around waitin’ for my life to begin
While it was all just slippin’ away
I’m tired of waitin’ for tomorrow to come
Or that train to come roarin’ ’round the bend
I got a new suit of clothes a pretty red rose
And a woman I can call my friend.

-Better Days, Bruce Springsteen

After hubris, always nemesis. The prime minister has fallen. For a while it appeared he would not make his departure voluntarily, and resort would have to be made to that old standby of “bills and bows”, to persuade him to make his exit, but the matter is now settled and although he remains in office, he is not in power.

The Wacky Races of yet another Tory leadership contest are about to begin, as various grotesques and eccentrics, make their play for ultimate power by chasing the pigeon of the premiership. There are no giants on the political scene and the Age of Miracles is long past. We shall have to see who emerges from the fray and hope they don’t do too much damage.

This last month I have been grappling with my own challenges, including a nasty bout of Covid. After 2.5 years of successfully dodging the virus, I succumbed and had a torrid time with coughing, gasping, a sore throat and brain fog. Mercifully the acute symptoms have subsided, and I am left with a sense of chronic fatigue. But the summer holidays are now in view.

Moreover there have been interesting developments in the field of costs, with clear signs that yet further reform is on the horizon. As in politics more generally  never does anyone take office and say to themselves, “the current system is not perfect, but is adequate and I shall leave it alone.” Instead new office holders must make their mark upon it: as otherwise what are they for?

The Civil Justice Council are undertaking a new consultation on various aspects of costs. A copy of the consultation paper can be found here: CJC-Costs-consultation-paper-FINAL-June-2022. It will be seen that the scope of the consultation has been deliberately limited. This is not a root and branch review of the costs system but deals with four particular issues where reform may be needed:

3. The CJC agreed that the Working Group would focus on four areas:
1) Costs Budgeting;
2) Guideline Hourly Rates;
3) Costs under pre-action protocols/portals and the digital justice system;
4) Consequences of the extension of FRC.

The scope of the review has been defined in rather curious terms:

4. The Working Group’s remit is to take a strategic approach, recognising that access to justice for all plays a vital part of the rule of law in a democratic society and that affordability is fundamental to such access. The Working Group understands the importance of detail. However, it is not part of the group’s remit to conduct an examination of the fine-grained aspects of any of the areas under consideration. The costs review is intended to be holistic in nature (albeit focusing firmly on the specific areas identified above), acknowledging that while each of these topics is important in itself, their interaction with one another and the wider context of civil justice as a whole, is crucial. That wider context has many dimensions but three in particular are worth highlighting at the outset.

This would suggest that the focus of the review is not on the detail of the rules or substantive law governing these particular issues but is intended to be a more “blue sky” evaluation of these issues and where they sit more generally in the civil justice system. This will undoubtedly raise questions of policy, rather than principle. In particular it appears the review is keen to address wider themes, than those promoted by the usual interest groups:

5. The first is digitisation. This has the potential to transform civil justice and reduce its cost and complexity for many court users. Its impact is only beginning to be felt. The costs system in civil justice must be fit for purpose in a Digital Justice System. That will include costs incurred in proceedings before the court, and also costs incurred before court proceedings begin.

6. The second dimension is vulnerability. The needs of vulnerable court users must always be taken into account. That is particularly so when changes are being proposed. Furthermore, unintended consequences should be avoided.

7. The third dimension is the economic significance of the civil justice system. A functioning civil justice system is the bedrock of the economy. Everyone, including individuals, small and medium sized enterprises, and larger organisations, is entitled to a clear and enforceable legal framework in which to conduct their affairs. Organisations need such a framework to be able to plan and invest for the future, secure in the knowledge that breaches of their rights can be remedied, and that their obligations can be enforced, if necessary. Accessible courts promote respect for rights and proportionate dispute resolution, even without the need for parties to go to court. Lengthy delays and excessive cost needlessly magnify the stresses caused by involvement in court proceedings, with knock on effects for society and the economy. If disputes cannot be resolved within reasonable time and in a proportionate manner, then the rule of law itself is undermined.

Of the three dimensions noted above, I would suggest that the key one at the current time is the third one: the court system itself is too costly with its issue fees, too prone to delay and too plagued by inefficiencies by reason of botched centralisation and the decoupling of the process from skilled and concerned court staff, accountable at a local level.

An efficient and well run court service would more easily accommodate the vulnerable, lead to reduction in the litigants costs and I would suggest, the issue of digitisation has not yet crystallised in a discernible form to concern the profession. It may prove to be extremely important, but at the moment has the flavour of the “jam tomorrow” promised by every public sector IT project of recent years, that one cares to remember.

I shall be drafting a response to the consultation and will publish it on this blog in due course, but for now, it is time to leave, where I entered with a promise of better days to come.

Mr Springsteen, please take it away.

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