Taking the wrong direction?

The Civil Justice Council (CJC) has expressed “considerable concern” about proposals to divert claims from the courts by introducing mandatory pre-action directions.

These would be unconstitutional “as a matter of principle and of fact” since they would “place a fetter on access to the courts”, the CJC warned, in its response to the Ministry of Justice’s (MoJ) consultation on solving disputes in the county courts.

“Mediation and other forms of dispute resolution have an important role but where a civil dispute needs to be decided there must be no doubt that the principal arbiter of civil disputes will be the courts and that access to the courts must be unfettered.

“Mandatory pre-action directions, involving a ‘one size fits all’ approach and delayed access to judicial involvement, are contrary to the active judicial case management principles encouraged by Lord Woolf in the civil procedure reforms. Judges have a fundamental role to play in case management and costs management.

“The consequences of delayed access to judicial involvement can be particularly serious for litigants in person unfamiliar with process. The consequences can also be particularly serious in terms of cost as matters proceed without judicial focus on their direction, their management, or the proportionality of what is being done.”

While there was scope for “further use of mediation”, this should be achieved through “active judicial case management”, the CJC said.

It warned against extending the £10,000 limit on the road traffic accident (RTA) personal injury scheme without detailed risk analysis, since cases between £10,000 and £25,000 in value are often more complex and tend not to fit the RTA Protocol. “By their medical nature they are often not capable of speedy and prompt settlement.”

Extending the scheme to include employers’ liability and public liability claims, excluding occupational diseases, was worth considering, it said, but would require “substantial” time to develop.

The MoJ consultation, launched in March, attempted to tackle the problems of lengthy delays, expensive legal action and claims being brought inappropriately. Three-quarters of claims in the civil justice system are settled after allocation but before trial, according to the MoJ.