CIVIL JUSTICE REVIEW (Hansard, 6 April 1989)

§ The Lord Chancellor (Lord Mackay of Clashfern)

The Government have considered the report of the review body on civil justice, and wish to record their gratitude to members of the advisory committee for their contribution to the work of the review over more than three years. In response to the report, the Government have decided to undertake a programme of improvements in the administration of civil justice in England and Wales. This is part of a general overhaul of the legal system, including reforms of child care law. The overall objective of these changes is to improve the service provided by lawyers and the courts to litigants in civil and family cases. The programme for civil justice will be phased over a period of up to five years to take account of the need for primary and secondary legislation and further policy development, and of the capacity of the legal system to adapt to change in an effective and orderly way.

Jurisdiction and allocation of cases

A more appropriate distribution of business between the High Court and the county courts was identified by the civil justice review as the key to reducing delay and cost. The Government therefore intend, by means of primary legislation, to reserve the High Court for public law and other specialist cases, and for general cases of unusual importance, substance or complexity.

A new system will be introduced to ensure that cases are handled and tried at the appropriate level. The upper financial limit of county court jurisdiction will be removed. Entry to the High Court and eligibility for High Court trial will be regulated. The criteria for allocation of cases will include financial limits applied to particular classes of business. These powers will be exercised to effect a major shift of lower level personal injury cases from the High Court to the county courts. Similar provision will be made in due course for debt cases. Housing possession cases currently dealt with in the High Court will be moved to the county court at a later stage, following discussion with interested parties.

Increases in both the trial jurisdiction of registrars and the upper financial limit of the automatic small claims jurisdiction will complete the new pattern of case distribution, and will help to offset the additional workload for circuit judges resulting from the shift of cases out of the High Court. Development of continuous trial facilities at suitable centres will also help the county courts to absorb an increased volume of cases.

Related procedural changes

The new system of case allocation will be accompanied by a number of changes designed to eliminate unnecessary differences between High 1294WA Court and county court procedure. Subject to certain exceptions, the same remedies will be available in both courts. An appropriate costs regime will be introduced for common cases and in the longer term, a common core of procedural rules will be developed to cover general High Court and county court business.

Improvements in the handling of cases

A number of procedural changes will be introduced as a means of speeding up and improving the handling of full trial cases in both the High Court and the county courts. The Government intend to give the courts a more active role in the management of case progress, in order to reduce delay before trial. A full system of court control will take some years to achieve, and in the meantime other steps are being taken to reduce pre-trial delay, especially in personal injury cases. The Government consider that the normal permitted period between issue and service of process should be reduced from 12 to 4 months, and that the court should have power of its own motion to order a split trial, in which the issue of liability is tried in advance of the issue of damages. The object of this is to reduce delay, which may, for example, be caused by waiting for adequate diagnosis of a plaintiff's medical condition.

Other bodies have a role in the reduction of pre-trial delay. One of the principal objectives of the legal aid board is to improve the quality of service provided to users of the legal aid system, and this will include reducing the present level of delay in the handling of applications for civil legal aid. The Home Office will pursue with the police the proposal for early release of accident reports pertaining to civil proceedings. Similarly, revised guidelines will be issued by the Department of Health to health authorities, encouraging early release of medical reports.

New arrangements to encourage openness between parties, including early exchange of witness statements, are expected to encourage settlement in appropriate cases and reduce the length of hearings in cases which go to trial. There will also be new arrangements for the conduct of civil trials, to reduce the need for the lengthy taking of oral evidence.

Debt enforcement and issue of summonses

Arrangements for handling debt enforcement in the county courts will be rationalised so that in the majority of straightforward cases judgment debts will be payable direct to the creditor. At the same time, a central, computerised summons production centre will be set up to deal more efficiently with the bulk issue of summonses by large creditors.

The division of responsibility for enforcement of judgment debts between county court bailiffs and High Court sheriffs will remain as at present, with the bailiffs' responsibility in county court cases defined by an upper financial limit of £5,000. All High Court judgments, of whatever value, will continue to go to the sheriffs. Various aspects of the system for managing bailiffs are currently being reviewed. Proposals for reform of the sheriff system are under consideration.

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Access to justice

The increase in the small claims jurisdiction will be accompanied by procedural improvements, with a view to protecting unrepresented litigants and to encouraging individuals to participate more fully in the handling of small county court cases generally. These improvements include simplified court forms and printed information, and more guidance to unrepresented litigants from court staff.

The Government are planning a number of changes to the handling of housing cases in the county courts, including reform of existing possession procedures so as to provide the court with fuller evidence on the basis of the claim and the circumstances of the defendant. Simplified procedures will be introduced to enable landlords to recover rent arrears quickly and cheaply without recourse to the full possession procedure; and to provide easier access to the court system for tenants and others involved in disputes about matters such as repairs. The precise scope and form of these procedures will be determined after further consultation with court users and others with an interest in housing matters.

Administration order procedures will be reviewed with a view to ensuring that they are used more effectively as a means of dealing with multiple debts.

Closer links between courts and advice agencies will be encouraged, and the legal aid board will be asked to consider, in the context of its other responsibilities, whether agencies whose staff maintain a regular presence at courts, and which provide representation and other services to litigants, should be eligible for funding by the board in respect of such services. Wider availability of lay representation in smaller cases is among the matters put forward for consultation in the Government's recent Green Paper on the legal profession. The precise nature and scope of the service offered by the county courts to litigants in smaller cases will be reviewed when the results of this consultation process are known.

Judicial studies

The Government recognise the importance of enabling the judiciary to keep fully up-to-date with the new arrangements, particularly in relation to the proposed changes in procedure. The judicial studies board will be invited to develop detailed plans to deal with this.

Other matters

There are a small number of outstanding matters to which further consideration is being given. The usefulness of the hearsay rule and the current machinery for rendering hearsay evidence admissible in civil proceedings will be examined in due course. The case for relaxing the current prohibition on contingency fees has already been opened for re-examination in a recently issued Green Paper. Finally, the Government intend to give effect to the recommendation for a judicial title for registrars.