Chancery Modernisation Review – PLA response

 

The Property Litigation Association (“PLA”) represents 1,200 members. Members spend at least 50% of their time working on Property Litigation matters.

Mr Justice Briggs’ communication with the PLA was circulated to all PLA Members and their comments were sought. This response collates Members’ written responses, discussions of Committee Members between themselves and with other Members of the PLA and with other members of their respective firms. The PLA have also considered the Bar Council’s recent publication “Reforming Civil Litigation” and the speech of Lord Neuberger “Docketing: Completing Case Management’s Unfinished Revolution, Ninth Lecture In Implementation Programme, Solicitors’ Costs Conference 2012 (London, 9 February 2012)”.

Given that many firms have already responded to the Review, written responses to the PLA were lower than might otherwise been the case. However this response has been reviewed by all Committee Members, reflects discussions with many Members and represents the combined views of practitioners from firms who have Members participating in the various Committees of the PLA (in excess of 20 firms). Helpfully a number of responses were received from regional firms. The PLA is therefore content that the views expressed are representative of its Members and practitioners in this area and that the responses were of a good quality. Some of the questions raised in the Review are perhaps more suited to an individual response rather than a collective one and where appropriate this should be noted. However this response still seeks to answer the questions raised.

For the moment it has not been possible to survey all Members, but if it would be helpful the PLA would be very happy to do so on specific issues following further discussions with Mr Justice Briggs due to take place on 10 May 2013.

Summary

As a foreword and by way of summary the overall impression of Committee Members and of the responses is that PLA Members’ and practitioners’ experiences of the practice and procedure of the Chancery Division is very positive indeed. Members and practitioners are generally supportive of docketing, however, there is a good deal of reserve in respect of the practicalities of this. Members are generally not supportive of the Bar Council’s recommendations in respect of witness summaries replacing witness statements nor of the abolition of pre-action protocols. Members are supportive (where this would be proportionate) of issue based disclosure as recommended by the Jackson reforms.

Whilst not wishing to unnecessarily concentrate on the Bar Council’s recommendations, this response first comments on the recommendations and explains Members’ reasons so as to generally assist in matters either directly or indirectly raised by the Review. This response then deals with the 16 questions raised in the Review.

Docketing

All Rolls Building cases should be docketed to one Judge. He or she should conduct a CMC by close of pleadings, when the parties should identify the issues to be decided and the evidence required, thus limiting disclosure and the preparation of evidence.

Members consider this to be a good idea in principle, because it should lead to a more consistent approach throughout a particular action and ensure that any applications are dealt with by a Judge who is already well aware of the issues – leading to savings in time and cost. However Members have serious concerns that docketing could lead to difficulties and delays in the Court hearing applications (particularly simple/procedural applications). This was particularly a concern where matters were proceeding in smaller Courts or District Registries. There was also concern that urgent interim applications might need to be allocated to a different Judge to avoid delay if the docketed Judge was unavailable. Some Members felt that the current system of an allocated Master, if combined with an allocated Judge, might be an appropriate method of proceeding. Members were concerned that docketed Judges might be kept busy on less important interim applications, which might not be the best use of their time. Members comment that the Chancery Judges are particularly able in dealing with trials and substantial applications (as is currently the case). One possible solution is to have a system of docketing, but to give parties the option when they make interim applications to request their allocated Judge/Master to hear the application or allow it to be heard by the first available Judge/Master.

Some Members comment that most hearings could be dealt with by telephone or video conference if the allocated Judge/Master was not in London or if the respective solicitors were not local to London or the relevant District Registry. However, Members comment that telephone or video conference hearings are not suitable in cases involving self represented parties.

Pre-action Protocols

Pre-action protocols should be abolished as they increase expense. Emphasis should instead be on ensuring pleadings comply with the CPR.

Members are not at all supportive of the abolition of pre-action protocols. Members comment that pre-action correspondence should not be replaced with pleadings as a means of narrowing down issues. This is seen as retrograde. Members comment that these suggestions seriously undervalue the role of pre-action correspondence and point to the fact that the number of Property Litigation cases issued at Court fell dramatically when the pre-action protocols were introduced. Pre-action correspondence often leads to early settlement of cases without the need for any proceedings to be issued. Members comment that the Bar Council’s perspective is perhaps influenced by the fact that the Bar tend to see the cases that do not settle and therefore their experience necessarily cannot gauge the amount of cases where pre- action correspondence and pre-action protocols lead to settlements or, at least, to early or timely alternative dispute resolution (even if proceedings have been issued). It is also felt that pre-action protocols are a very useful tool in guiding the pre- action conduct of opposing parties and in handling and managing difficult clients and opponents (not the least because of the possible and perceived cost consequences of failure to comply with the pre-action protocol). Some Members would wish to see greater use of cost penalties if pre-action protocols are not observed in their spirit.

Further, most parties and their advisers are prepared to be guided by the norm and to properly participate in pre-action protocols. This is particularly so where other professionals are involved. The PLA, the RICS and the Bar were very supportive of the Dilapidations Pre Action Protocol (now adopted in the CPR). This was strongly evidenced by the PLA’s recent survey and “Question Time” event on 23 October 2012.

Members comment that pre-action protocols are a very effective means of narrowing issues. It is also felt that care is needed not to overstate the usefulness of pleadings as a means of narrowing the issues. Pleadings can (despite efforts of the Court to the contrary) remain very opaque and moulded to suit a party’s [or the parties’] strategy. This cannot be the case when these matters are dealt with in witness statements (we return to this in more detail below).

Witness Statements

The current rules on witness statements should be abolished and replaced by rules for witness summaries, which enable the Judge to exclude oral evidence or direct witness statements:

Members are not supportive of this suggestion. In Members’ experience the exchange of witness statements is an informative and helpful stage in Civil Litigation. It is often at that stage that the other sides’ position is more fully understood and the strengths of the witness evidence and other side’s case can be more properly assessed. This is particularly so for clients who are not lawyers who carefully analyse witness statements. There is concern that witness summaries would be neither efficient nor sufficiently detailed. Even with the increased role of Counsel and early concentration on identifying the issues to be decided, the evidence and disclosure, it is feared that the most likely consequence is that many more cases will go to trial. This was certainly the case in the memory of Members when live evidence in chief was the norm. It is also likely that many parties will not be able to properly assess the strength of the other party’s witness evidence until it is tested under cross- examination. This will tend to prolong disputes until a trial and at times be disproportionate. Further, clients are more likely to become very nervous of the prospect of matters proceeding and then the outcome resting more on live evidence at trial. This in itself is considered to be somewhat double-edged.

Members also comment that witness statements and statements of truth have forced ownership of litigation onto clients and this should not be diluted or removed.

Members do not believe that the combination of discouraging pre-action correspondence, greater emphasis on the pleadings and witness summaries will be seen by clients as best serving their interests.

Members are concerned that at times pleadings may revert to bald denials or vague statements and that these matters would then need to be addressed by making Part 18 Requests for further better particulars. In effect this is inviting more interim applications and costs. It is also the belief of Members that the proposals of the Bar Council could lead to the reintroduction of multiple applications for amendments to the pleadings (which have now become rare applications) and would make advising as to the merits of the claim considerably more difficult.

Members have also raised issues as to whether witness summaries would be verified by a statement of truth and whether clients would understand the summaries sufficiently and be comfortable with this. The issue as to ownership is again of relevance here.

A single electronic case management administration system should be introduced across the Rolls Building and there should be only one procedural guide for the whole of the Rolls Building.

Members are fully supportive of this sensible suggestion.

Mr Justice Briggs’ questions

1. What use do you make of the Chancery Division? Do you use it mainly in London, or in the District Registries and, if so, where?

Many London firms commented that they use the Chancery Division for all proceedings in property matters save where they are compelled to use the County Courts (such as in Landlord and Tenant Act 1954 claims or possession actions). Many firms tended to mostly use TCC for dilapidations claims. The regional firms still tend to use London, but some use is made of the District Registries. There was positive comment about the Central London Civil Justice Centre Chancery Section which practitioners were using. There were some comments that two judges had retired there and had not been replaced. There was also positive feedback in respect of Manchester and Leeds District Registries. However the inconvenience, difficulties of listings and extra expense of travel was a factor for London firms.

2. For what type(s) of business do you use the Division? Please provide some outline of the subject matter, size (and by time and value) and complexity of your cases.

The response of member firms was understandably varied to this question. The usual range of property litigation matters, contractual disputes, and declaration proceedings, injunctions, high profile and urgent possession actions were mentioned. Generally the range of dispute is always over £100,000 but more usually more substantial (between £0.5m and £20m+). The remedy sought is often injunctive or other non-monetary relief. There were included disputes as to development agreements, rights to light and other easements. Members commented that the disputes tended to raise technical aspects of the law and interim applications were often required. Some members used London and District Registries for insolvency related
matters.

3. Is your contact with the chancery judiciary mainly with High Court Judges, Deputy Judges, Masters, Registrars or District Judges?

The answer on this question depended on the work done by the Member firm. Some firms acted for large institutional landlords and therefore dealt with District Judges and a large volume of Landlord and Tenant Act 1954 renewal work in the County Courts. Others did not have this type of work and the contact was then mainly with High Court Judges, Deputy Judges and Masters. Members also had initial contact with Masters dealing with the majority of interim applications.

4. Does your pattern of court use enable you to compare Chancery Division practice with that of other Courts of tribunals, and if so, which?

Members normally have a mix of work spread across the County Court, the TCC and the Chancery Division. It was therefore possible for Members and firms to make comparisons.

5. Is your business with the courts such as enables you to choose between the Chancery Division and other courts or tribunals, including arbitration? If so, which do you usually choose, and why?

Members would normally, where they had a choice, choose the Chancery Division because of the high level of judicial expertise both in respect of the Judges and Masters. Where work is dealt with by the County Courts they tended to use the Central London Civil Justice Centre and commented that the Senior Chancery Circuit Judges were again of a high quality and able to deal with matters reasonably promptly and efficiently.

6. Do you regard any other courts or tribunals as offering better practice or procedure than the Chancery Division for comparable business? If so, why and in what respect?

Members’ overall answer to this question was a resounding “No”. Comments were however made that the Central London Civil Justice Centre offers equally good practice and procedure within its Chancery Business List. The procedures of the TCC when dealing with substantial dilapidation claims were seen as appropriate to the detailed nature of the claims. However, there were some significant reservations about the TCC in terms of their application of the law surrounding dilapidation claims.

7. If you bring business of a specialist nature to the Chancery Division, do you consider that the practice and procedure is sufficiently adapted to that type of business? If not, how could it be improved? Are the judges who hear your specialist business sufficient specialised in there training and experience?

There are obviously some Judges who have a stronger property background and Members expressed a preference in that regard. Certain Judges and Masters were praised for their experience in this regard. Some Members commented that they had had cases listed before Judges with no specialist experience, e.g. a Judge with an intellectual property background hearing an enfranchisement matter which directly led to a successful appeal. The consequences for clients are serious as this significantly adds to the costs and delay of dealing with matters and undermines confidence in the judicial system.

The regional firms commented that there can be varying degrees of competence and experience and praised the Leeds District Registry in dealing with Chancery matters.

8. Do you consider the practice and procedure of the Chancery Division to be sufficiently flexible to accommodate your types of business, or the special requirements of particular cases with which you have been concerned? If not please identify any relevant inflexibilities and explain how you would like to see them addressed.

Members’ resounding answer was “Yes”. Some Members expressed a desire for resisting too much flexibility and requiring parties to stick to the court’s directions more rigidly, in the way that the TCC tend to deal with their cases.

9. Do you consider that judges of sufficient seniority have been allocated to your cases in the Chancery Division? Would you accept allocation of cases to more junior judges, if that would lead to shorter waiting times?

Members’ answers were that they would accept the allocation of more junior judges if this would shorten waiting times. A more junior Judge with specialist knowledge and experience is preferable to a more senior Judge without such specialist experience. There was comment that deputies at times reserve their decision where a judge would have the time to make and deliver their judgment and would ensure this was dealt with much more promptly. Delays in delivering judgment are not understood by the clients. Members recognised this was to some extent a “trade off”. Members’ preference was for an appropriate level of judge and for the “right decision”. This was seen as more important than cutting waiting times provided their experience was appropriate in respect of the subject matter of the claim. The quality of the justice is paramount and this was seen as a principal reason for using the Chancery Division.

10. Are you content with the current allocation of most case management to Masters, Registrars and District Judges with trials allocated to High Court or Deputy Judges? Or would you prefer more docketing of cases to the likely trial judge? In either case, please give reason.

We have already commented on the preference for docketing. Members are supportive of docketing provided this will not lead to delays. The importance of having knowledge of the whole history of the case and the conduct of the parties involved so there are more robust sanctions that can be taken against a party which conducts itself unreasonably during litigation was mentioned by several members. Members are very interested in consistency of approach and feel that docketing will lead to greater certainty and robustness. Members would prefer fewer Deputy Judges as they fear that these may not always have property expertise and there can be delays in obtaining and delivering judgments.

11. If you would prefer more docketing, would you be content with a greater allocation of lower value trials to more junior judges, including Masters, Registrars, Recorders and District Judges (with transfer to County Court’s where necessary) in order to free up the senior judges for more case management?

Members were supportive of the use of more junior judges where appropriate. Members were concerned to ensure that the judge still retained the appropriate technical experience. There were also concerns that senior judges were not best at dealing with day to day case management. Most Members are content that the current system of Masters and Judges works well. It is also some concern that cases might be forced to proceed too quickly for the parties as this does cause clients considerable cost burdens if there is a lack of flexibility when the clients prefer to negotiate or simply leave proceedings stayed pending recommencement of the action by either party. This point is particularly relevant to lease renewals under Part II of the Landlord and Tenant Act 1954.

12. Does your business in the Chancery Division give you a choice between using the Rolls Building in London or the main regional Chancery Trial Centres? If so, how do you exercise that choice, and why?

There was a preference from Members to use the Rolls Building and Central London Civil Justice Centre. Some regional firms were content to use their District Registry but this did depend on the complexity, value and location of the matter and the parties.

13. Would you favour the replication of the concept of the Patent County Court to accommodate other specialist areas of Chancery work and, if so, which?

Members on the whole did not favour any other specialist courts. It might be possible to constitute a Real Estate Court. Members did not have strong views on this question.

14. What recommendations would you offer to make the Chancery Division more accessible to self represented litigants?

Members were firmly of the view that the Chancery Division is fully accessible to self represented litigants.

Self represented litigants are seen as a considerable problem for Members and their clients. Members felt that if anything additional was to be done it would require significant resources, such as the availability of a duty solicitor to assist self represented litigants in civil cases. At a much lower cost some form of booklet or guidance to self represented parties on how to run their own litigation would assist. The PLA has spent some time discussing an initiative to introduce a guide of what self represented litigants should expect when dealing with the courts. The PLA intend to liaise with the Chancery Division and County Courts in this regard. The PLA are finalising a suggested form of order that could be sent out with the Allocation Questionnaire in this regard. This could perhaps be piloted to see whether the proposed order is of assistance. The PLA recognise that any initiative needs the buy in of the courts and needs to work for the courts and court staff as well as for self represented litigants and represented parties. Solving the self represented litigants issue is of great importance to clients, as they are mostly very frustrated by the extra costs they incur and by indulgences given to self represented litigants.

15. Do you think the current procedures of the Chancery Division are cost effective, If not, why not and how could they be improved?

Members feel that generally matters proceed in a cost effective manner in the Chancery Division. Members are encouraged by the new procedural rules in relation to sanctions, which Members feel will help to reduce costs once parties become properly familiar with these. Members have significant concerns about the Jackson Reforms and new rules on costs and budgets and disclosure and comment that these reforms are likely to create and increase upfront costs and disproportionality. There is also a significant fear of much satellite litigation, wasteful and tactical inter parties correspondence and issues between solicitors and clients seeking to escape payment of proper fees in this regard.

16. What improvements to the practice and procedures of the Chancery Division not included above would you suggest and why?

The PLA had few additional suggestions in this regard at this stage. One issue is whether the current practice of the Chancery Division drawing up their own orders might be replaced by solicitors and Counsel submitting orders as happens currently in QB. This might save important time for the clients and result in a cost saving.

Keith Conway