Flying a kite

In 2016 a soon-to-be appointed Deputy Head of Civil Justice published the final report of the Civil Courts Structure Review.? The subject of my last post for 2023 are his recommendations about the triage stage of the proposed Online Court:

Recommendation 8:

“The early start made on the design, development and testing of the knowledge engineering needed for stage 1 of the Online Court should continue to be treated as a priority.”

Recommendation 10:

“Stage 1 of the Online Court should not be postponed to the development of Stages 2 and 3.”

Stage 1, Tier 1, the Single Entry Point, the Funnel and the Front End are all terms which have come to be part of the orthodoxy of the civil justice reforms for which we confidently expected the Online Procedure Rules Committee (OPRC) to legislate.?

We may be forgiven our confidence for the Master of the Rolls, and Head of Civil Justice, made speech after speech promoting the importance of this idea.? I pick two to highlight in this post but my article for Solicitors Journal entitled “Seven Speeches” shows how this idea of Lord Justice Briggs was repeatedly emphasised by Sir Geoffrey Vos.?

The speech given to London International Disputes Week in May 2021 (the so-called “waggy dog” speech) in which the idea was described as a “cohesive online funnel”. Followed by Sir Geoffrey's speech to the GEMME meeting in Dublin in October that same year in which he spoke about a “front end signposting to all accredited dispute resolution platforms” (the “Claims R Us” speech) in which this entry point was also said to be "cheap and easy to establish and maintain".

Little surprise then that The Law Society (LSEW) made Tier 1 the centrepiece of their proposals for 21st century justice in an important Green Paper published on 9 October 2023.? Referencing Lord Justice Briggs' 2016 Report, they said: ?????

“The development of an online diagnostic tool to support individuals and small businesses to identify and resolve their legal issues must be a cornerstone of reforms to enhance access to justice for low-income individuals and small businesses.” (p. 13)

“Must be a cornerstone”: whilst the bold font is mine the strong language belongs to the LSEW.? Citing support for it from external stakeholders and the public the Green Paper says:

“In workshops held by the Law Society … an online ‘one stop shop’ to support people to resolve disputes was the most commonly proposed solution to the challenge set of making alternative dispute resolution work better and legal services more affordable…” (pp.13-14)

I pause to note that the vital work of the Third Sector is acknowledged both by Lord Justice Briggs in his November 2023 speech and by the LSEW in their Green Paper, especially the invaluable work undertaken by Law for Life (Advicenow) with their brilliant easy-to-understand, informed guides to myriad legal issues facing citizens in England and Wales.

The Green Paper is out for consultation until 5 January 2024 and I urge all those who have not yet submitted their response to do so.? This is an excellent piece of work and deserves a strong response from across the community.

Lord Justice Briggs’ Final Report was published on 27 July 2016 by the then Lord Chief Justice and Master of the Rolls (for they had commissioned it) with the following warm words of welcome: "Lord Justice Briggs has delivered a detailed and innovative final report, which the senior judiciary – working with the Government and HM Courts and Tribunal Service – will now consider with care.”

That careful consideration took 7 years, 4 months and 4 days before a contrary view was expressed about the idea of Tier 1.? On 30 November 2023 another Deputy Head of Civil Justice (Lord Justice Birss) delivered a speech in which he responded to the idea that is said to be the “cornerstone” of the civil justice reforms, Tier 1, with these words (para 52):

“Now you might think that part of the solution to many of these problems is what has been called in the past ‘a single point of entry’. If only there was a single place – a single website let’s say – maybe run by the Government – to which everyone could go and it would ask them what their problem was and tell them authoritatively where they needed to go and what to do. And at one stage our thinking was centred around a set up like this. And something like that looks like that may still have a role to play. However, it does raise some difficulties…”?

That speech is nuanced, interesting and intriguing in equal measure.? The “difficulties” are never explained by His Lordship but they will be timing and funding.

Timing because what is at play here, as always with civil justice reform, is politics with a small “p”.? The overriding objective is to reduce the Backlog.? Integrating mediation in pre-action will do that.? DEF completed research late last year, updated in Autumn 2023 (in the light of the Pre-Action Protocol Working Group’s Final Report), which shows that the integration of mediation into pre-action will cause the number of claims being issued in Civil jurisdictions to fall by 60%.? Now there is something for the LSEW to reflect on.? Indeed, they have - by emphasising the importance of Tier 1 as a means of generating work for their members. ?Yet Tier 1 will take time to develop, build, test and deploy.? Too much time for Backlog busting.? Maybe later, on which see Recommendation 10 of Lord Justice Briggs’ Final Report, above.?? We are at the point where grand ideas meet hard reality.? Timing is one such reality in the difficult art of balancing political choices.

Funding is the other difficulty.? How to pay for Tier 1 is not addressed by the LSEW in their Green Paper. ?As my connections and followers would expect, DEF has devised a funding mechanism and it will feature in DEF’s submission next week to the LSEW.? To give the background, yesterday I received confirmation of my assumption (in an earlier post) that the bulk of the additional almost ￡1bn of capital funding for the Ministry of Justice UK (MoJ) next year is to: “Protect the public from serious offenders and improve the safety and security of our prisons….The increase is driven by the …Settlement’s commitment to build 20,000 additional prison places by the mid-2020s.”? This re-prioritisation has led to a 30% reduction in funding for Modernisation or a cut of almost ￡28m.? Rather tersely explained as: “Reduction in capital funding for HMCTS Reform.”? The curious may find the table in the Estimates Memorandum for 2023-24 on page 10.? I do not see a Labour Government in either May or October 2024 reversing any of that.

The timing of Lord Justice Briggs’ speech is also of interest coming as it did before the end of the consultation period for the LSEW Green Paper and after the Autumn Statement which brought news of the cut to the Modernisation budget.

The question is, what will replace Tier 1?? This is now, Lord Justice Briggs explains, to be provided by the Dispute Resolution Service Providers and their platforms.? Some, he said, already provide such a service and mentions the Housing Ombudsman.? However, most ODR platforms do not provide these services and are not set up to provide such a service.? The investment required to develop such functionality in an untested market for pre-action services may prove a deterrent to the entry of such providers.?

To some extent that will not matter as the policy priority (unlike in 2016) is to Bust the Backlog and that is understandable as the Backlog grows longer every day.? It will, however, matter if the OPRC legislates for ODR platforms to provide such services.? That is why it is important to work together to work out these policy ideas before they become rules.

I ask, rhetorically of course, whether it is helpful to announce dramatic changes of long-established policy in a speech to the Competition Law Association – what the members of that Association made of it I cannot imagine - which speech was barely reported.? Hats off to Neil Rose and Legal Futures as the only mainstream Legal Press to report the speech. ?The binning of Tier 1 will dramatically reduce the amount of work referred to already hard-pressed civil litigators.? A matter which will be of concern to the LSEW and which will, no doubt, be taken up by them with the OPRC during 2024.

There is much more to be said about how the vast numbers of pre-action cases will be managed without Tier 1 and the diminished access to justice offered by the alternative proposed by Lord Justice Birss.? Those numbers and their consequences will be explored in detail in DEF’s submission to the LSEW next week.

We were faced with a similar challenge in 1996. ?The Lord Chancellor’s Department (as the MoJ was then known) refused to agree the establishment of the Civil Justice Council (CJC) which I described in a speech, in the Great Hall of Lincoln’s Inn, as the jewel in the Crown of the Woolf reforms, with Lord Woolf at my side.? That speech led to a campaign supported by the LSEW, the Bar Council, the Consumers’ Association and many others which overcame the Government’s resistance.? Thus we found a way to the CJC.? Could we do without it today?? Can we find our way to Tier 1?? George Bernard Shaw once said, of the campaign to build the National Theatre:

"Do the English people want a national theatre? Of course they do not. They never want anything. They got the British Museum, the National Gallery, and Westminster Abbey, but they never wanted them. But once these things stood as mysterious phenomena that had come to them, they were quite proud of them, and felt that the place would be incomplete without them."

Thus, the Civil Justice Council.? However as to Tier 1 - significantly, according to the LSEW, the English (and these days we of course add the Welsh) people do want Tier 1!

Almost exactly one year ago, on 2 January 2023, I posted about the importance of 2023 as a year that would test our will to continue with these ambitious world-beating reforms and the need for courage, see the Red Panda post pinned on my profile ( John Ries ).? I wrote then:? ??

“Despite recent successes with Ministry of Justice UK portals there remains the work of connecting the disparate pieces of the pre-action puzzle.?So very much to do and it will be challenging.?Courage assisted by perseverance is what will be needed to overcome the obstacles that await.”

That connecting work was the Funnel, the “single entry point”, the Solution Finder – a way finder through the thick fog of legal and other solutions.?

We have enjoyed success in 2023: section 24 of the Judicial Review and Courts Act, 2022 was brought into force in June, the first meeting of the OPRC was held on 26 June and the advertisement for the first 10 members of the vital sub-committees to support the work of the OPRC appeared in November.? The OPRC is set to begin work in March 2024.

Is Lord Justice Birss’ speech a definitive statement of policy?? If not, it is certainly authoritative and influential coming, as it does, from the Deputy Head of Civil Justice.? If so, what then will be the response of the community of lawyers, Third Sector advice agencies and lay representatives??

Or is his speech flying a kite?? If so, then the first test of wind direction will be the publication of the LSEW’s response to the consultation about their Green Paper.?

2024 promises to be another year that tests our ideas, and our mettle.