Is civil justice review a Pandora’s Box?

The Review of the Administration of Civil Justice Report has almost 500 pages and 95 recommendations. Review group member Stuart Gilhooly focuses on the major issues.

When the Review of the Administration of Civil Justice commenced in September 2017, the membership could have been forgiven for thinking that, like the Great War, it would be over by Christmas.

And, indeed, it was concluded by December – we just didn’t know it would be the most recent one. In hindsight, it shouldn’t have come as a surprise.

When you open a Pandora’s Box of such depth and complexity, it was always going to take time and compromise to reach agreement. A lengthy report was finally produced in December 2020, after three years of meeting after meeting of the main committee and various subgroups.

The result is the most comprehensive review of the civil justice system in living memory, with sensible and (in some cases) radical recommendations for reform. It was a group whose membership was necessarily diverse, including myself as Law Society nominee.

In addition to the Bar and a judge of each of the courts, representatives of the Courts Service and various Government departments were herded like a well-behaved clowder of cats by the experienced hand of then (and now former) President of the High Court, Peter Kelly.

Major issues

Nearly 500 pages of carefully crafted prose, replete with 95 specific recommendations, cannot be neatly condensed, so I will concentrate on the major issues as they affect practitioners.

As with all matters involving the courts system, the issue of costs is never far from the discussion. A lot of assumptions are made about the accessibility of justice in the current regime, which rarely take into account the willingness of lawyers to take on cases pro bono or on the basis that no charge will accrue unless the matter is successful.

Indeed, this system, which is necessary due to the complete absence of a functioning civil legal-aid system, is often used as a stick to beat us with, leaving the inevitable conclusion that we will never convince the naysayers – and there is little point in trying.

Nonetheless, among the specific terms of reference was to find ways to reduce the cost of litigation. While many of the 95 recommendations did precisely that, either directly or indirectly, it was felt that a specific review of how costs were calculated was necessary.

Although the effects of the provisions of the Legal Services Regulation Act 2015 have still to be properly evaluated, given the dearth of available data over such a short time period, the group felt that further transparency was required for the consumer in terms of what costs might be payable, in the event that the client is ultimately required to pay such costs.

Two methods

A debate ensued as to which of two methods would be fairer. The minority, consisting of representatives of Government departments, maintained that a rigid scale system (allowing for derogation only in exceptional, court-ordered circumstances) represented the best method of reducing costs.

The majority, consisting of all other members (excepting the Office of the Attorney General, which abstained, and the chairman, who did not express a view at that time), favoured a more flexible approach of non-binding guidelines.

The rationale behind the view of the majority was that rigid scales would ultimately be an anti-consumer measure, which would favour institutional litigants such as the State or insurance companies. They would continue to pay such costs as they saw fit to the lawyers of their choice, given the relative size of their pockets.

The average consumer, however, would find themselves either unable to obtain access to justice, since the costs payable – even in no-win, no-fee cases – would be uneconomic, or they would have to be responsible for any balance of costs, either at the outset or upon successful conclusion, thus driving a stake through the concept of full compensation for the commission of wrongdoing – which would only benefit the losing party.

Non-binding guidelines

By providing guidelines of a non-binding nature, the principle of increased transparency is maintained. Costs would be fair in every instance, and routine cases that would be very much the norm would fall squarely within the guidelines.

However, the minority of complex matters would receive fair costs, and the overriding requirement for equality of arms would remain in place.

It is to be expected that Government, which is committed to implementing the recommendations of the review, does so by following the specific view of the majority, and that it will not follow the anti-consumer, pro-institutional opinion of the minority.

Of course, the issue of costs was not the only one the group considered, and other matters (including discovery, judicial review and court reforms) were among the highlights of the report from the point of view of the practitioner.

Discovery

Discovery has been the bane of most litigators’ lives for as long as we can remember. It is a complex and onerous aspect of the litigation process, which has been further complicated by digital communication.

The group has, therefore, recommended that the current regime be abolished and replaced by a new procedure, which will have to be provided by primary legislation. It will require production of certain documents in every matter, which is designed to obviate the need for discovery above and beyond these documents.

It remains to be seen what the exact nature of this new system will look like, and it could be some time before complex primary legislation is drafted. In the meantime, the current discovery process will remain in place.

Judicial review pressure

The system of judicial review has been under pressure for some time. An unwieldy two-step process that has weeded out only the blatantly unmeritorious cases has meant delays in hearing the many entirely reasonable matters before the courts.

It can be difficult to please all litigants in situations like this and, no doubt, some will be unhappy with the recommendation that leave will only be granted where there are substantial grounds and a reasonable prospect of success at trial. It is, however, difficult to objectively argue with these criteria, which, presumably, are similar to those adopted by most solicitors before taking on such cases.

In addition, entitlement to judicial review for clerical deficiencies and unintentional slips will be only allowed where rectification has been sought from the original decision-maker and wrongly refused. Both of these significant changes will also require primary legislation, and the current rules will remain in place in the meantime.

The review group also suggested a myriad of court reforms: that deputy masters should be able to preside over case-management conferences; that a single claim form should replace all the various types of originated documents in the court; and that a specialist list for medical negligence cases are among the most significant.

Case inaction

However, of most import is the proposed introduction of the automatic discontinuance of cases where no action has been taken. This measure is required to satisfy European requirements that proceedings are being concluded in a reasonable time frame.

Now, if no action (either by way of setting down or other proceedings on the court record, such as motions) has been taken within 30 months, a case will be automatically discontinued. Application to reinstate, however, will be a remedy available. As this reform can be made by way of court rules, it is likely to come into being sooner rather than later.

And that is a whistle-stop tour through a very hefty tome. Please do not treat this as the definitive summary. It is far from it. The document is available on the websites of the Review of the Administration of Civil Justice and the Department of Justice and, if you are a litigator, at least familiarise yourself with the full list of recommendations in Chapter 12.

It remains to be seen how quickly Government will act on these recommendations, but seeing as they form part of the Programme for Government, they are likely, at least in some part, to see the light of day over the course of the current administration. Never a dull moment.