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We’ve looked at resolving disputes between parties themselves. That’s always a possibility and, in a vacuum free of human frailties, is how everything would be sorted out. Computers, for example, which often have completely different operating systems, designed in a different programming language, with an output in different human languages, are able to resolve all disputes using the Transmission Control Protocol and Internet Protocol, and the internet works perfectly well. It doesn’t need to employ a third party to resolve any conflicts and certainly doesn’t need the state to intervene.

But we don’t live in that world. We will always have our differences, and we will always need mechanisms for resolving conflicts that result from those differences. We have also looked at dispute resolution in the private sphere. Some methods of resolution involve transferring control over the outcome to a third party, such as arbitration or adjudication, and some methods involve a third party giving guidance or facilitating a negotiation, such as Early Neutral Evaluation and mediation respectively. Full disclosure here: I really don’t like the way the civil courts work these days. I don’t think I’m alone in that view either. In fact, the state has pursued a policy over the past couple of decades of specifically attempting to discourage the use of the civil courts, in some cases by making the system worse with every change of the Civil Procedure Rules (CPR), every review by a member of the judiciary (Woolf, Jackson and the like) and every minister for justice.

It’s not all bad, and indeed my suggestion in the previous paragraph that every change of the CPR, etc, is definitely overstated (sorry about that). Having an online way of issuing money claims does make issuing claims easier, for example, that’s true. And changes such as removing the old writs and originating summonses, and replacing them all with a claim form also makes a great deal of sense. However, most of the reforms over the past few decades have at least been about discouraging people to use the courts. Just in the initial overview of Lord Woolf’s 1996 report “Access to Justice” he described the “new landscape” that he proposed to introduce (and which we now live with) as having certain features (I’m just reading from paragraph 9 of his overview here - he goes into more detail elsewhere in the report), the very first one of which was “litigation will be avoided wherever possible” (as a side note, compulsory adjudication for construction disputes came in as a result of an Act of Parliament in 1996 too, and I suspect the rise in the use of adjudication has been helped along in part by these court reforms). Indeed, other reforms have been specifically about making the courts system more difficult, or more expensive.

Take the Jackson reforms, for example. The problem that seems to have been identified by his Lordship was that certain claimants found it far too easy to access the courts system, so the solution of imposing success fees and insurance in claimants themselves, along with banning referral fees, was the answer. Worse still, another recent change has been a huge increase in the fees payable by users of the court. A claimant now has to pay up to ten thousand pounds just to start the claim. So the courts have become more expensive, and worse. In fact, there are several features of the civil justice system which just would not exist if one were to design it from scratch. I’m going to deal with just a few here, but there are more. First of all, who on earth decided that the best way to get to the truth of what someone is saying is to allow them to be bullied by a member of the professional elite (or, as most call it, “cross-examination”). I have never seen cross examination (or, I should clarify, I have never seen cross-examination worth remembering or writing about) where the witness has not been intentionally led down a line of fact finding to a point where they are shown to be lying. Even when they’re not.

I get that cross-examination can be shown, anecdotally, to allow a judge to get to the truth of the matter. But it seems like a ridiculously risky way of going about it, particularly in a risk-averse world that we live in. I often spend hours - days, sometimes - drafting witness statements for witnesses in civil disputes. I agonise over whether a witness should say that they know something to be true, or that they just remember it to be a certain way (and sometimes even finer distinctions). And I worry about what enclosures should go in and how those enclosures are photocopied, paginated and bundled. But then when that witness takes to the stand, if they’re just a “shoot from the hip” kind of witness, for example, their whole credibility could be out of the window within minutes. It’s also just a very unpleasant side to the whole process. I’m thinking more now about criminal litigation than civil litigation, so am going somewhat off topic, but victims of serious crimes are subjected to this bullying in court in order for the judge/jury to get to the truth. I don’t have the answer to cross-examination, by the way. I had a bit of a look around to see if any academic studies had been done. After a very short glance on google, it occurred to me that actually what I’m getting at here is a comparison with the inquisitorial system of justice found in civil law jurisdictions, for example on the continent. A comparison of that magnitude is well beyond the scope of this blog (at least for now). I’m going to move on to my next criticism instead…

Second, with a more specific criticism of recent reforms, the whole costs budgeting system found in most civil disputes in England & Wales is ridiculous. I don’t know who keeps saying that it’s working really well, because it isn’t for me, and it isn’t for anyone else I know. For anyone reading this who doesn’t know what costs budgeting is, I will explain as briefly as possible. For centuries, the English civil courts system operated by lawyers charging money to their clients, and if they won, they could recover a proportion of that money back from the losing party. The courts exercised judicial control over how much money could be recovered by reference to what’s reasonable and what’s proportionate. The process is called assessment. All fine so far. Since around 2013, most parties to civil disputes are now required to file and serve a costs budget, setting out in detail how much the rest of the dispute is going to cost. The cost of the litigation is then limited to what’s in the budget. That might be fine if a costs budget was something that could simply be completed in 5 minutes by the office junior, but it isn’t. It takes several hours, including a hearing (usually by telephone, to be fair), all at the hourly rate of a solicitor charging about £200 per hour. So everyone knows in advance what the cost of the litigation is going to be. Great. Very insightful. What has happened is that the great and the good in the world of civil justice reform have just made litigation about fifteen hundred quid more expensive per case, and achieved very little else.

Then (and this is my third point) there’s the service you receive. The County Court Helpdesk has already been removed in most courts across the country, so you can’t just go to see someone if you have a question about a case or you want to make sure something is filed. No, no. They’ve been closed. There is still a telephone line, which seems to take an age and a half to be answered, and the person at the other end isn’t usually able to help anyway. Even the system of judges that we have is not perfect. I should be clear at this stage, that actually the judiciary themselves tend to be the silver lining to all of this, and I suspect many of them are equally frustrated by the civil justice process as the litigants, and they should be commended for the work they do. However, there are still criticisms to be made. Because we’ve got an adversarial justice system (perhaps that cross-jurisdiction comparison blog post wouldn’t be such a bad idea), it very often occurs that a judge will know perfectly well what clever legal point would help a party or resolve a case properly, but they keep it quiet because they’re not acting for that litigant. Actually, there’s what at least looks like a genuinely concerted approach, borne out of a real sense of justice and purpose, from the judiciary locally in Norwich to help out litigants in person when they’re struggling, and the judiciary should be commended for that. But it doesn’t always happen, and indeed the natural bias in the system is against that sort of practice. Moreover, there is little incentive on the court system to provide a decent service, because they have a monopoly on justice (use that word to distinguish from dispute resolution, for which there is a reasonably healthy marketplace). Very few litigants will not have had a hearing cancelled because of lack of court resources.

Can you imagine if a mediator cancelled a mediation, or if an adjudicator wasn’t able to resolve a case within the expected time period? I’m sure it happens, but rarely and not nearly as much as with the courts system. None of this is to mention the very terrible decision making of some first instance judges, or the slow processes involved leading up to trial, not to mention the sometimes very pedantic and bureaucratic machines that are some court administration bodies. It all points in one very negative direction. Now, there is a bit of a risk for your dear author that a blog post like this is career suicide. After all, my job depends specifically on persuading the judges and the court system in general to make decisions that are in my favour, but it does all have a purpose, which is this: Why on earth would you want to use the civil justice system, when there are so many better alternatives out there? Why hand control of your dispute over to the state? Particularly for litigants in construction. We have adjudication, mediation and arbitration all very well developed in this country, along with other means of resolution such as Dispute Resolution Boards, Early Neutral Evaluation and Expert Determination.

That’s not to mention the various more informal methods mentioned in our first blog post on this topic. Litigants should think carefully at the outset of any case whether the use of the civil justice system is definitely better than trying to reach a resolution in person. Or getting a third party to facilitate a settlement. Or maybe employing someone to give some kind of evaluation advice to both parties. Or even employing a third party to make a decision. Or go through a dispute resolution process away from the courts. Anything. The reality is that there does need to be a civil court in place, otherwise there would be little incentive to actually reach a settlement of disputes, rights could not be properly enforced and our economic system would entirely collapse. And actually, despite everything I’ve written, it is usable and, hey, at least we don’t have to use the Italian justice system. But for anyone thinking about issuing proceedings, it is definitely worth thinking about an alternative first. There’s bound to be a better of way of working it out without losing control.