Civil Courts Structure Review: Interim Report – PLA Response

 

This response has been prepared by the Property Litigation Association (“the Association”). The Association consists of approximately 1,200 members who spend a substantial amount of their time engaged in property related dispute resolution. The Association’s members deal with commercial as well as residential property disputes.

The Review is a major piece of work and the Association congratulates Lord Justice Briggs and his team in producing such a detailed report and for consulting further.

The Association’s response is limited to two aspects of the consultation: enforcement and appeals. The Association has not commented on the On-Line Court proposal as the membership does not have a united view. In general, the Association is of the view that the proposal looks interesting and the £25,000 limit appears sensible.

The Association has also responded to the Civil Justice Council (Property Disputes Working Group) Discussion Paper.

Enforcement

It is the Association’s view that the enforcing party should have the freedom to select whether to seek enforcement in the County Court or the High Court. A very significant number of the Associations’ members transfer, as a matter of course, enforcement of orders from the County Court to the High Court. This is especially so in respect of possession orders.

The Association’s view is that the court should remove the financial restrictions of both the County Court and the High Court. There should be complete freedom of choice and the process of selection should not be hindered by judicial intervention once judgment has been obtained. Further, the option to enforce in the High Court should not require permission of the County Court and form N293A should be able to be signed by the enforcing party.

There should be no change in the current fee structure. It is a matter of commercial choice if the enforcing party wishes to engage more expensive High Court enforcement agents over County Court bailiffs.

We support the report’s proposal that there needs to be consistency of process and unification of the enforcement process. Enforcement processes in the High Court and the County Court should be unified to avoid/reduce the risk of procedural errors which are likely to result in increased judicial time.

Appeals

The consultation paper makes it clear there are issues that raise questions of public importance and that require further consultation. The Association concurs. The Association would like to be involved in the further consultation and believe that it would be useful if detailed evidence were available for consideration to assist with debate.

It is understood that the Court of Appeal’s work has increased by 54% in the last six years but there is a lack of context to this statistic. In 2010 1,879,000 (non- family) claims were issued whereas in 2015 only 1,581,200 (non-family) claims were issued. This is a reduction of just over 15%. The increase in the number (54%) indicates that this is a serious issue to be addressed. These figures suggest that either the quality of the decision making in the lower courts has deteriorated over the last 6 years or that litigants are increasingly unwilling to accept judicial decisions.

On the assumption that the resources have not diminished over the last 5 years by a factor of well over 50% it would appear that the level of resources should not be the major problem. Although it is recognized that increasing resources will go some way towards resolving turn-around times, this will not address any inherent problem within the system. Equally, there is only so much that can be done in terms of the court’s efficiency. Whilst there may be efficiency issues to be considered any action will not address the reason for the significant increase in the workload.

The Association does not support any reduction in the quality of the service provided by the Court of Appeal; it is an extremely important part of the judicial system. It is imperative that the quality of the judicial decision making process is preserved. The Association believe any attempt to reduce the quality of the service will result in longer term problems. However, this does not necessarily mean that the court should not consider greater use of the “TWM” procedure. If it is clear that an appeal is without merit the court should not shy away from terminating the appeal process.

The court’s workload (by this we mean the civil court excluding family claims) has fallen by 15% over the period 2009 to 2015. On the assumption that the 54% increase is limited to civil work (whether or not including family matters) and excludes criminal matters (and the CCSR: Interim Report is not clear on this point) the Court of Appeal’s workload should have reduced whereas it has increased disproportionally. The question that is raised is: why?

The Association is keen to be involved in the next stage of the consultation.