The pace is picking up!

I sense a quickening in the pace of civil justice reform.? An extra vitality, a feeling of extra momentum which, as this year wears on, can only result in change.? The palpable sense of the possible was evident in the Civil Procedure Rule Committee (CPRC) minutes for their meeting held on 2 February 2024 and published last week.? Focusing on my priorities here are the highlights:

Pilot PD for Integrated Mediation in Small Claims

The final draft of the Practice Direction (PD) for this important reform was approved at the CPRC’s October meeting and is now in its final drafting stage.? The necessary changes to Court forms to reflect this reform have been approved.? The forms in question include: N180 – Directions Questionnaire, Notes for a Defendant when replying to claim form and notes for a Claimant on completing a claim form.? Form N182 (mediation settlement agreement) has also been amended.

This reflects His Majesty’s Courts and Tribunals Service’s (HMCTS’) prioritisation of this reform which was mentioned in the update briefing “Getting it right for civil, family and tribunals reform” by Rachel Hunt the Civil, Family and Tribunals (CFT) Programme Director of HMCTS and published on 29 February 2024 where she wrote:

“We must balance delivery of reform with other policy areas … [for example] the introduction of automatic referral to mediation in the civil process. This has resulted in further development work needing to be prioritised over planned reform work.”

These two news items continue to encourage me in my forecast that a stand-alone Statutory Instrument introducing the reform is likely to be published before July 2024.?

This is an important reform for clearing the Backlog.? Integrated mediation is likely to settle between 50% and 55% of the cases in which a Defence is filed in the Small Claims Track, where most of the cases are to be found in Civil proceedings.

Renters (Reform) Bill

At para 34 of the Minutes Rosemary Rand of HMCTS is recorded as confirming there was “a digital dimension” to the reforms. We learn that the reforms will usher in the digital build of the possession system to replace the existing Possession Claim Online (PCOL) system. ?Regular readers will recall this new development work is being funded by the Department for Levelling Up, Housing and Communities.

Interestingly the Minutes note the Chair (Lord Justice Birss, Deputy Head of Civil Justice) remarking that he and the Master of the Rolls (the MR) are strong supporters of wholesale reform for “property” and the creation of a digital “Civil and Tribunals property platform”. The current and reformed possession work could be a part of this wider vision and he encouraged policy makers to consider it.

These Minutes are, I believe, the first confirmation that PCOL is to be replaced.? However, all that may go following the forthcoming General Election.

I was pleased to read that CPRC Member Isabel Hitching KC asked whether the digitally excluded were being considered (Ms Rand confirmed they were) and officials were requested to include the topic of digitally excluded users within a subsequent presentation, because it will be relevant consideration in the context of any consultation exercise.

Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416

Following this era-defining decision of 29 November 2023 the Minutes noted (para 72) that the MR has asked Lady Justice Asplin (judicial lead for alternative dispute resolution (ADR)) to chair a sub-committee to consider the issues arising from this case, where the Court of Appeal found that courts did have the power to order Court proceedings to be stayed to enable Non-Court Based Dispute Resolution (NCBDR) to take place.

Of interest is the note in the Minutes that the impact of the Churchill case has been considered by the Mediation Sub-Committee (chaired by Mr Justice Henshaw) and the view is that the draft automatic mediation for small claims pilot PD will comply.? Further clearing the way for the introduction of integrated mediation in the Small Claims Track (SCT – civil cases for claims less than ￡10,000) sooner rather than later.

Clinical Negligence Fixed Recoverable Costs (FRC)

At para 78 of the Minutes, despite the CPRC previously noting that the title of this work stream was misleading (this is because the scheme includes not just FRC but pre-action NCBDR elements: settlement meetings and neutral evaluation) Senior Master Cook is recorded as confirming progress was ongoing. The sub-committee reviewing the draft rules is provisionally expected to report to the March 2024 meeting, which may have already happened of course.? Those Minutes should be published during the first to second week of April.?

Nothing in this discourages me from my forecast that the new Pre-Action Protocol (PAP) for Clinical Negligence claims worth less than ￡25,000 will be introduced in October 2024.

Final thoughts

February’s Minutes frequently record the Committee’s concerns about tight timetables within which amendments were expected to be approved especially where Bills were not yet Acts(!) and policy remained unsettled(!!).? The Renters (Reform) Bill and the Digital Markets, Competition and Consumers (DMCC) Bill were two areas in which such concerns were expressed.? I strongly suspect the General Election will scupper both legislative projects.

Finally, I record my support for the kind words expressed in the Minutes about the imminent retirement of Robert Wright after 36 years as a Civil Servant.? Birss, LJ in particular noted Robert is “…a stalwart of civil justice and highlighted the effectiveness of his straightforward and professional style…”.

I echo those sentiments and have fond memories of working with Robert on civil justice reform projects.? I wish him a happy, long and full retirement.