Civil and Family Justice Review – Preliminary Civil Justice Report
09 December 2016
The preliminary Civil Justice report prepared by Gillen LJ has now been published. The main recommendations he has made in respect of Personal Injury litigation are as follows:
General – applicable to High Court and County Court
• The use of witness statements to be encouraged where appropriate.
• Greater use of email and telephone reviews.
• Gillen LJ recommended that the Plaintiff should be able to make a “lodgement-type” offer to the Defendant where the Plaintiff indicates what figure he would accept and if he matches or exceeds this figure at hearing he would receive interest of up to the 10% on the damages from the expiry date of his offer.
• Amendment of discovery rules to change the requirement to a “reasonable search”, similar to the English rules.
• The phased introduction of a paperless Court. All discovery and trial bundles could be available on computers rather than the production of large numbers of paper files.
• The use of a joint expert (including medical experts) to be encouraged, rather than both parties instructing separate experts.
• Introduction of a scale for expert’s fees.
• The introduction of a set of accreditations for expert witnesses.
• The pre-action protocol should be amended and sanctions should be introduced for non-compliance.
• One of the proposed amendments is that a claimant will be entitled to pre-proceedings discovery if the letter of claim is of sufficient detail to enable the respondent to identify what documents would be relevant if proceedings were issued.
• Case management by the judiciary was a point of emphasis. Gillen LJ proposed that every case should only require one case management hearing 9 months after the issue of the writ. This would be a reasonably lengthy hearing and would set out directions for the conduct of the case.
• Reviews could be carried out by telephone or by way of agreed directions if the parties consented to this. If the case is of sufficient complexity further reviews would be possible. There would also be stiff penalties for failure to comply with Court directions.
• Gillen LJ recommended the implementation of Order 14A from the High Court rules in England & Wales whereby the Defendant can apply at an early stage (although after an Appearance has been entered) to strike out the Plaintiff’s claim on a point of law. He stated that this is an efficient and cost-effective way of disposing of unmeritorious claims.
• Gillen LJ proposed that a scale for professional fees for legal representatives be introduced. He recommended that a scale with varying bands of costs depending on the complexity of a case be introduced.
• The financial jurisdiction of the County Court to be increased to £75,000.
• That District Judges and County Court judges should become one tier of “civil judges” allowing District Judges to hear all cases in the County Court no matter the amount claimed.
• If the single tier of “civil judges” is not introduced, then the financial jurisdiction of the District Judges Court should increase to £25,000.
• The financial jurisdiction of the Small Claims Court to increase to £5,000, although personal injury cases and road traffic accidents still should not be litigated in the Small Claims Court.
• Remittal and removal applications to be heard by County Court judges and District judges in addition to Masters in the High Court.
• Amendment of the pre-action protocol as follows:
• Plaintiff’s letter of claim to include details of financial loss.
• Pre-action disclosure of documents to be encouraged, including the use of applications for pre-action disclosure.
• Defendants to be given 3 months to conclude liability investigations. After 3 months they must clearly state their position in relation to liability and if they are denying liability, their reasons for doing so.
• The Defendant to have to fill in a questionnaire specifying what their Defence will be before a Certificate of Readiness can be lodged.
At this point the report is in draft format. There is now a consultation period, open until 9th December for stakeholders to provide their feedback on the report and its recommendations and a final report will be issued next year.
The general purpose of the report is to modernise and streamline the provision of Civil Justice in Northern Ireland. The proposed reforms, if implemented, would all seem to contribute toward this goal, particularly the move towards a paperless Court and the use of technology in reviews.
The pre-action protocols were a point of emphasis. It was stressed that they should be amended so that they are fit for purpose and sanctions should be introduced for non-compliance. If this recommendation is followed, it should logically lead to less litigation.
Professional fees in the High Court and expert’s costs were analysed. Gillen LJ indicated that he believed that there should be more certainty in respect of costs, and recommended both a scale for experts fees and a scale for professional fees in the High Court.
The costs scale in the County Court was praised. Gillen LJ also indicated that the County Court was generally very effective in carrying out its function with the main issue being that cases were often not being heard on the day they were listed due to the presence of other criminal or family matters in the judge’s lists. To combat this he has recommended setting up “Civil Centres” which will have dedicated civil judges and only deal with civil matters on specified days.