The Chancery Division of the High Court is in danger of waiting times for trials and hearings becoming unacceptable, in part due to greater judicial time being required by the Jackson reforms, according to a major review.
As flagged up in the preliminary findings in July, the final report on the Chancery Division by Lord Justice Briggs – the first for 30 years – also identified a lack of modern IT as a major weakness.
But consultation responses clearly indicated that “fundamental reform” was unnecessary and that generally the division “provides a high-quality, flexible and efficient service”.
Among many observations that followed three consultations and a three-month analysis of the work of the division covering London and the regional centres of Manchester and Leeds, the judge urged frequent Jackson-inspired “culture changes”, especially on aspects of case management.
There should be increasing convergence within the Rolls Building, between the Chancery Division, the Commercial and Mercantile Courts and the Technology and Construction Court, he said, acknowledging the “very real contribution to UK plc” they made. He urged that increases in court fees should be “ring fenced” for their benefit rather than end up in the “general budget of the Ministry of Justice (MoJ)”.
The three priorities the judge listed, on which he said there should be no compromise despite resource constraints, were: the maintenance or reduction in London waiting times; the provision of better access to justice to litigants in person; and the provision of modern IT.
As well as maintaining service levels for the “maximum number and type” of the division’s court users, a major priority was also “the increase in the amount of the workload case managed by full docketing and by judges”.
Meanwhile, the “single biggest anxiety facing the Chancery Division”, said Briggs LJ was that it would “not be able to maintain waiting times for trials and hearings at an acceptable level”. This was in part due to MoJ budget cuts and an increasing workload, but also “the substantial increase in the judicial time now requiring to be spent on each case occasioned by the coming into force of the Jackson reforms”.
While the judge believed Jackson-type reforms would lead to shorter trials, he predicted this would be at the expense of judicial time. Unless the decrease exceeded the extra case management time by “at least a factor of four” – to better the three-quarters of cases that already settled before trial, after receiving case management directions – it would be “a case of increased judicial work leading to savings for the parties”.
Key reforms proposed in the report included:
- Jurisdictional restraints on masters, registrars and district judges should be lifted and, in a “major culture change”, the allocation of cases should be “by managed flexibility”, with a comprehensive system of triage for incoming cases.
- Case management has to be re-focused on alternative dispute resolution rather than preparation for a full trial, Briggs LJ said. For that purpose, the parties should be required to address the timing, type of and impediments to ADR in an expanded questionnaire before the first case management conference (CMC).
- Case management for trial should also be subject to “culture change”. “For that purpose, the parties should be required before the first CMC to prepare a rough and ready list of the main issues, based on the statements of case, to be used as a flexible management document thereafter throughout the case.”
- There should also be “a major culture change” about trials themselves, including: “Trial time should, where necessary to achieve proportionality, be rationed by the court rather than chosen by the parties.”
- Also, changes should be introduced such as: making trials fixed-ended, building in judicial pre-reading and judgment writing times, a convention limiting the length of cross-examination, maximising the use of IT at trials, and flexible seating patterns in court to facilitate communication between lawyers, experts and parties.
- Another “fundamental culture change” should improve the experience of litigants in person, who, the judge observed, “cannot help being litigants in person in the absence of legal aid”. Changes, such as “bespoke and early case management”, should involve giving them “fair, not just palliative, treatment”.