Reasons to be cheerful, Part 3: John Coltrane's soprano*

The third and final part of our short pre-Christmas series - time to get down to brass tacks: the when, how, and what of the reforms.

When?

When will implementation of reforms to civil justice reform begin??This could be as early as Autumn 2023.?The sooner the better from our perspective of course.??

These reforms are important for the citizen desperately waiting to be rid of his or her or its dispute in order to move on with their lives.?Citizens want a resolution that works for them.??

Reform is vital for the lawyer too as he or she desperately tries to finish cases and deliver better, fairer outcomes for the client.?Many of those lawyers will be paid nothing until the case is won as they will be working on a Conditional Fee Agreement whilst, for many, supporting their law firms with increasingly expensive overdrafts and other borrowing.?The lawyers will also struggle with managing the risk of delays due to too few judges, too many lost files and too many last-minute adjournments.??

The completed system will unite the Portal Archipelago and deliver faster resolution.?Glimmers of this are appearing in the statistics as I tried to show in Part 1 of this series.?Rapid resolution will come to the civil, family and tribunal justice systems beginning next year.

The time line for progress was sketched out by the Ministry of Justice in a recent Engagement exercise for Online Dispute Resolution providers, subject to confirmation:

2023

Jan: Roundtables held for invited providers to understand and exchange ideas for the portals.?

Mar: Full membership of the Online Procedure Rules Committee announced

Apr: Online Procedure Rules Committee (OPRC) holds first meeting

How?

At a public seminar on 2 December 2022 hosted by the Faculty of Law at the University of Leicester entitled: “The role of [A]DR and Neutral Evaluation in the Reformed civil justice system” the Master of the Rolls gave the clearest explanation of the way forward yet.

The new pre-action system for civil, family and tribunals will be determined by rules made by the Online Procedure Rules Committee (OPRC) brought into being by the Judicial Review and Courts Act which received Royal Assent on 28 April 2022, see section 24.??

In response to a question from me he made clear that the OPRC will be making rules for all three jurisdictions.?In response to a question from Tim Wallis about whether Halsey will continue to haunt and hinder progress, the answer was a firm “it won’t”!

The new portals will not be dependent on public funding (which caused the initiative in 2006 to collapse when funding was withdrawn) but the Government and Judiciary will enable the private sector to develop platforms conforming to a specification set out in rules made by the OPRC, a Public-Private Partnership.??

These private sector platforms are to be optional.?However, in this context when thinking “optional” remember how the existing pre-action platforms are also optional: The Claims Portal or the Official Injury Claims Portal.?This what I call an “expectation” option system.?So we can expect to see Online Procedure Rules using this kind of language:

“This Protocol describes the behaviour the court expects of the parties prior to the start of proceedings” (para 2.1 of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013)

The words will involve, as in the existing Protocols, directions to a specified web address to begin the parties’ pre-action online journey. Almost identical words are used to drive uptake to the Official Injury Claim portal in para 2.1(2) of the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (“The RTA Small Claims Protocol”) colloquially, the “Whiplash Portal”.

As Lord Wolfson of Tredegar explained, during the House of Lords Committee stage of the Judicial Review and Courts Bill on 24 February 2022 (foot of col. 407 – top of col. 408):

“…the Online Procedure Rule Committee will say, “This is the protocol” and there will be Wolfson Mediation Services and Falconer Mediation Services and people can choose in a market who they go to. Of course, those services which offer seamless transition to the online courts service are likely to be better placed in the market, because they will have an advantage. However, it will be up to the providers to set up their services so that people can seamlessly transfer in.” [my emphasis]

I know, I know!?You have read it all before, especially from me.?The missed opportunities of 1999, 2006 and 2014 remain raw memories so why should pessimism (even cynicism) be set to one side THIS time??Because this time we have legislative power and political support which does not depend on the vagaries of public funding.

What?

If the opportunities are immense, as I said in Part 2 of this series, then how immense?

ADR during proceedings will be expected to have been attempted as a matter of course in every case and woe betide anyone not engaging in good faith with an ADR process.?The real game changer will be ADR before proceedings which is managed online.?This will create millions of cases for attempted resolution by one ADR method or another.?The statistics show that most of those attempts will be successful; on the day or within the days following the ADR engagement.?That is one BIG game changer.

By putting the management of the pre-action phase online the opportunity arises to integrate the pre-action platforms with the HMCTS home grown portals via Application Programming Interfaces (APIs) to swiftly transfer relevant case data from pre-action to court proceedings.?No more printing paper forms or sending cheques.?This will finally enable effective IT in the civil and family courts and the tribunals by connecting together the home-grown portals which exist as islands entire unto themselves which I have called the Portal Archipelago.?Now, connecting those islands - that’s another game changer.

2023 – a year in which to move forward.?This short series of articles is my positive message for Christmas-time which by tradition and religion is a time of hope, of renewal and of efforts rejuvenated to bring about change for the better.?

*Thank you Ian Dury and his co-writers for the title, the phrases and the music.