In this post we look forward to some of the procedural developments that those litigating in England and Wales can expect to see in the next twelve months.
Alternative Dispute Resolution
We can expect to see more pressure on parties to engage in ADR.
Since Dunnett v Railtrack plc  EWCA Civ 302, courts have imposed costs penalties on victorious parties who have unreasonably refused to engage in mediation. But there has not been much appetite to go further and compel parties to do so. Until now.
In July 2021, the Civil Justice Council published a report on the topic of compulsory ADR, concluding that (1) parties can lawfully be compelled to participate in ADR, and (2) there are conditions in which compulsion to participate in ADR could be a desirable and effective development. Following that report, in August 2021, the Ministry of Justice published a call for evidence on dispute resolution, the forward to which asserted that ‘methods of dispute resolution need to be mainstreamed within online processes, and within the culture of the legal system, those who work within it, and the consumers and businesses it serves.’
Given that Sir Geoffrey Vos, Master of the Rolls, has a stated intention of ensuring ‘that the provision of ADR is at the heart of all parts of the civil justice firmament’, we can be sure that increasing engagement is going to be high up on the agenda for 2022.
We can expect to see the fixed costs regime being extended to claims with a value of up to £100k.
The fixed recoverable costs (‘FRC’) regime, introduced in 2010 as one element of the Jackson Reforms, is finally to be extended in line with further recommendations made by Sir Rupert Jackson in 2017. The Ministry of Justice’s civil costs chief advised the Civil Procedure Rules Committee in November 2021 that the intention is to extend the fixed recoverable costs regime to cover all cases up to £25k and ‘intermediate’ cases up to £100k. The criteria for a case to be deemed intermediate are:
- Value between £25k and £100k.
- Trial no longer than 3 days.
- Statements of case no more than 10 pages; witness statements no more than 30 pages; expert evidence no more than 20 pages.
- No more than 2 expert witnesses.
- No wider factors such as reputation or public importance.
- No claim for damages for complex PI, clinical negligence, professional negligence.
Instead of tinkering around the edges, the plan is to conduct a complete overhaul of the costs regime set out in Part 45 of the Civil Procedure Rules, ‘to simplify and streamline the rules’. There is, therefore, a huge amount to do by the proposed deadline of October 2022.
Although Sir Rupert has previously called for fixed costs to apply in all cases up to the value of £250k, his recommendations ultimately stopped well short of that. It is unlikely that we will see any further extension of the FRC regime for some time (if at all).
The disclosure pilot
We can expect to see the disclosure pilot scheme being finally adopted.
It would be fair to say that the pilot, which launched in 2019, was not met with unalloyed joy. Its aim to promote a wholesale change of culture in the approach to the disclosure process was unarguably laudable but the proposals were met with some suspicion and, in many quarters, outright dismay. When first implemented, many felt that the pilot created more problems than it solved and that more money was being spent on disclosure (or at least on lawyers arguing about disclosure), not less.
Three years and two extension in and how do things stand? In short, much better. This has been very much the ‘living pilot’ advertised. There has been a huge amount of productive consultation and the Disclosure Working Party has shown themselves to be admirably willing to listen to and act on the comments and concerns of stakeholders. This has led to several significant amendments to the rules, which have made them much more practical. Further, lawyers have (by and large) got used to rules and are showing themselves to be more willing to engage constructively. While there is more to be done, and there will inevitably always be those who feel compelled to engage in trench warfare over inconsequential issues, this might just be (dare we say it?) a success.
Continuation of remote & hybrid hearings
We can expect to see the courts continuing with measures that were introduced by necessity during the pandemic, particularly remote and hybrid hearings.
The speed at with the Court and Tribunal Service brought about the widespread transition to remote hearings at the onset of the pandemic was nothing short of staggering. What would have seemed impossible in 2019, was achieved in a matter of days in some cases.
Clearly, remote hearings have a continued place in High Court litigation. As the Commercial Court has confirmed, the default position for all hearings half a day and under will be for them to be conducted remotely. While the conduct of longer hearings will be at the judges’ discretion, we can confidently assume that that discretion will be liberally exercised in favour of remote and hybrid hearings unless there is a real reason why the parties should all be required to be present in court. Even trials, which clearly derive significant benefit from being conducted in person, will regularly be hybrid in nature. Gone are the days where large numbers of witnesses will be required to attend from all four corners for the pleasure of a couple of hours in the witness box. Parties will have the flexibility to be more thoughtful (and, of course, strategic) about the conduct of the trial.
Finally, and this would perhaps be better expressed as a hope rather than an expectation, there may be movement toward resolving at least some of the difficulties Brexit caused in respect of UK/EU cross-border litigation in civil and commercial matters.
The plan (such as it was) was to leave Brussels Recast behind but acceded without delay to the Lugano Convention, thereby keeping the conduct of cross-border litigation with the EU relatively straightforward. The plan became unstuck when it became clear that the European Commission was not in favour of the UK’s accession. A final decision has yet to be forthcoming and, unfortunately, there is little impetus to get the matter sufficiently far up the EU agenda so that a final decision, which requires a special majority of EU member states, can be made. In any event, there is little expectation that this will be resolved in favour of the UK’s accession.
However, should EU approval for accession to the Lugano Convention not be forthcoming, there may be a small glimmer of consolation on the horizon in the form of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019. As the name suggests, the convention requires contracting states to recognise and enforce judgments in civil or commercial matters given in other contracting states. This was billed by the Hague Conference on Private International Law as ‘a true gamechanger in international dispute resolution’ and it certainly has the potential to be if the major jurisdictions accede. To date, that has not happened (Costa Rica, Israel, the Russian Federation, Ukraine and Uruguay are the sole signatories to date) but it is early days and there are solid grounds for optimism: last year the European Commission adopted a proposal for the EU to acceded; and the UK has indicated that it intends to accede in due course.