Changes in the court system

Posted on 05 February 2019

Changes in the court system

In a year where the UK's position in Europe and globally is facing uncertainty, the English court system is undergoing dramatic changes in an attempt to maintain London's position as a premier litigation centre.

In 1 January 2019, the new disclosure pilot scheme was introduced for cases in the Business and Property Courts of England and Wales, with the pilot running for two years (see our previous Inside Disputes article here for further background). It is no secret that reducing the spiralling costs of litigation was at the forefront of the minds of those responsible for trialling an overhaul of the system. As parties adjust to the new rules, the pilot evidences a growing appetite for change across the court system.

Indeed, this is not the first major change to hit the court system in the last 12 months. In October 2018, the Flexible Trials and Shorter Trials schemes were made permanent in the Business and Property Courts, following successful pilot schemes. As the names suggest, both schemes are aimed at achieving shorter and earlier trials in suitable cases, and doing so at a reasonable and proportionate cost. Elsewhere, electronic working – which enables court users to file documents electronically – has been extended from the Rolls Buildings courts to users of the Queen's Bench Division in London, on an optional basis.

It appears that more change is on the horizon. As anyone who has experienced litigation will know, written witness evidence is a crucial part of the process. In late 2018, a working group was tasked with canvassing views on witness statements. Surveys of court users asked whether the current rules should remain as they are and be enforced more rigorously or whether a more fundamental overhaul of the rules is needed.

This comes amidst concerns that witness statements no longer serve the purpose for which they were designed. Instead,  there are concerns about their use as a vehicle for commentary on legal issues. More worryingly, witness statements are perceived by some as over-elaborate and unnecessarily expensive documents, which are almost invariably produced by legal teams rather than the witness.

That is not to say that the witness statement is redundant, but the consultation does indicate an appetite amongst court reformers to rethink the role witness statements play, encouraging a critical examination of traditional ways of litigating. With the survey having closed at the end of 2018, it will be interesting to learn the results and the intended response the courts propose.

Two common themes emerge from a review of these latest changes and nascent ideas: the court is enthusiastic about reform that minimises unnecessary cost, and there is an increasing focus on the use of technology in driving down cost and increasing efficiency. Regardless of the outcome of the consultation into witness statements, it is encouraging to see the court system engage with new ideas. As Brexit looms, measures that seek to keep London at the forefront of the global litigation landscape should be applauded.

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