Civil Justice Council - call for evidence

I wrote last week about the planned second phase of the Small Claim Track review being undertaken by the CJC and the call for evidence probably being in late Autumn.

Some of you will be aware that, as well as my role in the Credit Hire Forum, I am also an accredited civil and commercial mediator and a member of the Civil Mediation Council.

Last week I received an email inviting me to respond to a call for evidence announced by the Civil Justice Council as part of their investigation into Alternative Dispute Resolution. Since the introduction moans quite a lot about the pressures faced by the court system and the number of cases issued versus those that get to a trial, I think that this call for evidence is clearly tangential to their other investigation into Small Claims and, on the basis that there is no smoke without a deluge of paper spewing out from government first, I thought it worth sharing. I should also mention that there are a number of ADR based initiatives already evolving between certain insurers, defendant and claimant entities and others and so I do think this is something worthy of your time.

I have provided evidence based on my experience as a mediator. In summary, I have said that it generally works but the conversion from enquiry to conversion is less than 10% because there is only ever one party prepared to mediate early on in the process and that whilst it is a valuable tool, I have explained the dangers where one party is unrepresented and the other, for example, is an insurance company/ABS. I have also specifically raised a point that Jonathan McKeown (JMK Solicitors) mentioned to me. I did so just in case the CJC are making this later investigation an adjunct to changes to the management of cases in the SCT.

I highlighted that the costs of mediation are rarely recoverable and often conceded or discounted as a means to achieve a final settlement. At the same time, I pointed out scenarios where litigants in person are significantly disadvantaged when fighting insurers that are represented by law firms keen to, and experienced in the art of gaming the system to maximise their fees, rather than to support the overriding objective and the efficient administration of justice. I made the point that the successful resolution of a dispute between two parties must carry a cost and that if the aim of this CJC investigation was to move to an environment where parties were compelled to mediate before they litigate, then the disputants must be on an equal footing and the costs of legal representation in preparing for and attending any mediation must be a recoverable component of a claim for any claimant.

The rationale that I gave was that their concern can only be that the Civil Justice System is currently overused, creaking and probably economically challenged but they should not ignore the reality that claimants seeking justice are being denied through the systemic delays in the system, many of which are engineered by, in the case of road accident claims, defendant insurers. Whilst a move to ADR might help solve some of the capacity issues in the system and improve the efficiency of the civil justice system, it should not do so through a mechanism were legitimate claimants are disenfranchised and forced to engage with insurers and their lawyers without adequate representation. Removing expense faced by the Court may be a benefit. However, the costs of resolving a claim outside of the judicial process, as a consequence of the failure of a disputant to make a reasonable offer of settlement, should not be something which the Civil Justice Council should seek to control if the objective of a removal of volume from the system is achieved. Indeed, it should eb recognised as a necessary cost, reasonably incurred and recoverable as part of the mediation.

Interestingly, in their introduction to the survey, the CJC do claim that as we recover from the impact of the pandemic (something covered in the second article below), “we want to make the justice system better able to resolve disputes in smarter ways, combining pre-claim portals and court processes with integrated mediated resolution interventions.” It is for that reason that I thought you might want toconsider making representations as well. You can access the online survey at the link below:

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