The judiciary has weighed into the debate about raising the small claims limit for personal injury by expressing “serious dismay” about the lack of consultation with judges and warning the government that any savings are likely to be outweighed by the significant extra burden litigants in person (LiPs) will put on the small claims court.
This need for extra resources would go hand in hand with less income from court fees, meaning it will be the public purse, rather than insurers, who will end up paying for them – implications which had not been addressed by the Ministry of Justice’s impact assessment.
The response to the Ministry of Justice consultation came from the judges who make up the civil executive team (CET), a recently formed group led by Lord Justice Briggs, the deputy head of civil justice, with Mrs Justice Simler, His Honour Judge Bird and District Judge Jenkins.
The Master of the Rolls, Sir Terence Etherton, has charged the group with overseeing the proposed reforms and changes in civil procedure, and it reports to the Judicial Civil Executive Board, another recently created body. Both the board and Sir Terence have seen and approved the response.
The CET expressed “a serious level of dismay that a proposal with such serious potential implications for the management and delivery of civil justice has not been made the subject of discussion with the judiciary before being launched as a public consultation”.
The response focused solely on the increase in the small claims track (SCT) limit for PI from £1,000 to £5,000.
While not seeking to address the merits of the proposal “head on or in full”, the response said “it is obvious, however, that there are serious access to justice issues for those with genuine but modest personal injury claims”, as 90% of them will be moved from the fast-track (FT) to the SCT.
The “very large increase” in LiPs that was likely to occur would both reduce the number of settlements and multiply the judicial time needed per case – compared with an equivalent case in the FT – by a factor of at least two, “but probably three or four”, the CET said.
“Of course, it is impossible to know in advance whether the savings which would result from a lower number of claims overall will be sufficient to counteract the additional burdens upon resources…
“But those contributing to this response (who consist of DCJs and DJs who actually conduct FT and SCT trials and case management) are generally very doubtful that the increased burdens will be cancelled out by any sufficient decrease in the caseload.
“If the perceptions about reduced settlement rates and increased court and judicial time needed per case are sound (and they derive from judges who are very experienced in this field) then the reduction in case volume assumed in the impact statement will come nowhere near cancelling out the consequential increase in the demands upon court and judicial resources.”
The CET said a large decline in the number of claims issued would have a similar effect civil court fee income. “Depending upon the amount of the decline, the court service may face having to fund increased resources at the same time as experiencing a reduction in fee income.” Raising issue fees would not be a “sensible” response, it added.
“There is probably no way round the simple proposition that if insurers are to be relieved from bearing the burden of the preparation of cases for meritorious claimants (because the claimants will no longer recover fixed costs), then the claimants will need the additional and expensive assistance of the courts and the judges to be able to prepare and present their cases. There is no sign in the impact statement that this likely consequence has been addressed.”
Other concerns included the “possible collapse” of the RTA portal once 90% of its caseload was removed. “No explanation is provided in the consultation or impact statement as to how the portal can adapt to accommodate LIPs. There is merely an assumption that it can, unsupported by any reasoning.”
The response said that some of these burdens “may be alleviated” if and when the Online Solutions Court (as the proposed online court is to be formally called) becomes available, but this would not be in time for the proposed change.
In any case, it said, the online court “is not at present configured to accommodate PI cases, although it probably could be, if additional resources for that purpose are made available”.