More civil litigation reform to come

Pre-action protocols should be abolished, and all cases docketed, to speed up dispute resolution and make it more cost-effective, a Bar Council working group has said.

In a discussion document, Reforming civil litigation, published last week, the Bar Council sets out its recommendations for change.

Bar Council proposals include: the allocation of a judge to each case so that the same judge is responsible for case management and trying the case; ensuring case-management conferences, conducted by the trial judge, take place no later than the close of pleadings, at which point the parties should be required to identify the issues to be decided and the evidence required; and the abolition of pre-action protocols.

The Council also recommends the abolition of the Civil Procedure Rules for witness statements, to be replaced with rules for witness summaries, subject to the judge’s discretion to exclude oral evidence or direct witness statements, and the introduction of a single, electronic case-management administration system throughout the courts in the Rolls Building.

The working group refers to Lord Justice Jackson’s statement, in his Review of Civil Litigation Costs, that there was no need for a commercial pre-action protocol, and that the general protocol should no longer be applied to commercial litigation.

“It is our view that formalising the pre-action process adds to the length, and thus the expense, of proceedings, and is thus against the interests of legal consumers,” the group says in the paper.

On e-technology, the group points to estimates that producing just one set of trial bundles in the Berezovsky v Abramovich litigation in the Commercial Court cost £26,000 for 280 lever arch files. If, as happened in that case, they were scanned in as PDFs, fewer sets would be needed.

The working group’s findings have been sent to the senior judiciary.

Michael Todd QC, former chairman of the Bar Council, says: “As part of ensuring that London remains one of the world’s most attractive dispute-resolution centres, we have to ensure that we keep developing our civil litigation system to ensure it remains relevant to the needs of its consumers.”