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Controversy notwithstanding, the Briggs Report contains welcome recommendations for improving access to justice
The long-awaited review of the civil courts structure led by Lord Justice Briggs has now published its final report and recommendations (Civil courts structure review: final report by Lord Justice Briggs, Judiciary of England and Wales, July 2016).
Much of what Briggs LJ recommends is highly controversial among practitioners, especially the proposals around an ‘online court’. The idea, encouraged by the thinking of Professor Richard Susskind and based on the Civil Resolution Tribunal in British Columbia, Canada that has just gone live, is to create an online court process for civil claims of up to £25,000 designed to give litigants effective access to justice without having to incur the disproportionate cost of using lawyers to issue claims.
Briggs LJ anticipates that the online court will eventually become the compulsory forum for resolving cases within its jurisdiction, although with provision for more complex cases to be transferred upwards to higher courts. Scaling back on his original ambitions, the final report limits the jurisdiction to straightforward money claims. It suggests that an initial ceiling of £10,000 could be adopted as part of a ‘soft launch’ of the new court and its use could be voluntary in the initial stages of implementation.
Another key change with which Briggs LJ is pushing ahead is the creation of ‘case officers’. These would make up a body of court lawyers, paralegals and other officials who could undertake certain functions currently carried out by judges, such as paperwork, case management and uncontentious matters.
In some areas, Briggs LJ has noted that he lacks sufficient expertise to give definitive answers or make systemic changes, particularly regarding the relationship between courts and tribunals. LAG took issue with his original proposals of integrating employment tribunals into the civil courts system, so we are relieved that the final report now appears to accept the case for maintaining a specialised jurisdiction for employment cases.
LAG is pleased Briggs LJ has heeded warnings that the move to online courts should not be rushed.
In the main, there is much to welcome in the Briggs Report in terms of thinking about how access to justice can be delivered more effectively, making the best use of technology, and LAG is pleased that he has heeded warnings that the move to online courts should not be rushed. It is especially welcome that he links his reforms to expanding provision for public legal education (page 60, para 6.116):
… [T]he success of the new court in extending access to justice will depend critically upon parallel progress being made with public legal education generally. The tradition in this country has been to think of legal aid as performing that function, by funding private lawyers to provide the necessary education to those unable to afford it for themselves, with voluntary agencies such as the CAB filling particular gaps. It is not therefore surprising that, now that legal aid has largely been withdrawn in relation to civil litigation, we are generally less well advanced in the provision of public legal education than some countries …
(Of course, as a judge, Briggs LJ has to tread carefully and avoid statements that might be too political, such as calling for the restoration of legal aid or explicitly linking the rapidly declining numbers using the small claims procedure and employment tribunals with increased fees.) ■
• An article on Briggs LJ’s final report will be published in October 2016.