Birss: Silly differences
Lord Justice Birss, the outgoing deputy head of civil justice, has spoken out at what he called the “heavily Balkanised” civil justice process in England and Wales.
Birss LJ particularly targeted the five overlapping but different practice directions for money claims, which he called “silly”, and the practice direction and pre-action protocol for the Official Injury Claim (OIC) portal, which he said were “so intricate as to be virtually unreadable”.
Speaking an event hosted by the Ministry of Justice and Law Society last month to mark the 25th anniversary of the Civil Procedure Rule Committee (CPRC), the judge said “the procedure applicable to the vast majority of cases in civil justice is actually specified in one of five different practice directions, which are themselves difficult to follow and hard to understand”.
Some of the “million plus” part 7 civil claims issued in the Money Claim Online (MCOL) system were governed by practice direction (PD) 7B for bulk claims, which “does not tell you much at all”, and PD 7C for non-bulk claims.
Meanwhile, PD 51R was for money claims issued in the Online Civil Money Claims system, and PD 51ZB for damages claims issued in the Damages Claims Portal – both introduced as part of HM Courts & Tribunals Service’s (HMCTS) reform programme.
Together, these account for 11% of civil claims and will, by the end of the year, incorporate about 25%, he said.
Finally there is PD 51O on electronic working, which governs the use of the CE file system in the High Court and the Court of Appeal.
“All of these five PDs – PD 7B, 7C, 51R, 51ZB and 51O – specify procedures which are different from each other and different from the process in the actual rules. Which is – to be polite – silly.”
The judge went on: “Now to be fair, nobody intended to be here. For example, the plan was to switch off MCOL years ago and use the HMCTS reform systems. It has not proved possible so far, but with any luck that will happen, and with it will go a large volume of paper in the county court.
“And we have just managed to retire PD 51O as a pilot – a 10-year pilot mind you – so that subject to ministerial approval it will go – albeit a special PD will take its place in the rules. But much of the odd drafting in PD 51O – and its pilot status – will cease.”
Birss LJ said the problem of “multiple special codes” was not confined to the “very largest scale aspects” of civil justice.
“What bedevils the rules is special pleading. Despite our best efforts – and I can tell you we do try – it has not been possible to hold the line and prevent the growth of special sets of procedural provisions for all kinds of places.”
For example, the rules on appeal differed between the Court of Appeal and appeals in lower courts while “multiple specialist courts have lots of specialist rules which again are not just different from the mainstream but different from one another – the Patents Court, the Technology and Construction Court, the Commercial Court, the Admin Court, the Planning Court, to name a few.
“I do not doubt there is a small set of things which do need to be different, but I seriously doubt it is all that much.”
Birss LJ described the OIC rules as a “hugely important piece of civil justice” which “took time (although it needed more) and all the people working on it worked very hard” to get it right.
“But we now have a vast pre-action protocol and yet another PD – PD 27B, both of which were necessary at the time but standing back and looking at them today, they are so intricate as to be virtually unreadable. We must do better. And we can.”
The judge said members of the CPRC had come up with “great ideas” to improve “not the rules in particular but rule making itself”.
He said the lacuna subcommittee, acting “like the CPRC’s immune system”, identified problems, tagged them, and worked out how they could be solved, which had “improved our rules immeasurably”.
A “rolling consultation scheme” on simplification had been developed, and large parts of the CPR were “improved, clarified and shortened, with many unnecessary practice directions put to the sword”, which “shows what can be done”.
Thanks to the simplification work, the CPRC developed a “pro-active relationship” with the Joint Committee on Statutory Instruments. Meanwhile there was a Welsh member on the CPRC, as the two countries had different laws.
There was also “the odd idea of speaking properly to other rule committees”, such as the Family Procedure Rule Committee, resulting in a common PD for domestic abuse protection orders.
Birss LJ will take over as Chancellor of the High Court on 1 November from the retiring Flaux LJ. Mrs Justice Cockerill, who joins the Court of Appeal in October, will become deputy head of civil justice.