A Cinderella service

The government cannot be relied upon to solve the problems that beset civil justice. Instead, those in the sector must work together to propose workable solutions, argues Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations

Civil justice has been a Cinderella service for some years now and while government ministers are reluctant to admit this, they have found it hard to deny.

Per-person spending on justice is down around a quarter since the pre-financial crisis days of 2008, and it shows. Average waits to get civil cases to trial had been creeping steadily upwards long before Covid, and while the pandemic didn’t help matters, the malaise long pre-dates it.

Part of this is simply down to political reality. Politicians have an understandable longing for votes and the performance of the civil courts is not seen as a likely source of these. Prisons, criminal justice and looking tough on crime are the more attractive options, regardless of who is in power.

It would be foolish to suggest this will work out well in the longer term. When justice, and our fellow citizens’ ability to access it, are prejudiced, mistrust of its administrators is bound to follow.

The answer to this will not lie in more public funding, for example through the wholesale reintroduction of civil legal aid. It has been made abundantly clear over the last two decades or so that this is not going to happen.

Ministerial attention on the day-to-day issues that face lawyers is limited. In the first 12 months of the Labour government, only one speech of any note was made on civil justice. The minister who delivered this to a Civil Justice Council conference, Heidi Alexander, hit the right notes and was then promptly promoted to transport secretary later that same morning. Her successor, Sarah Sackman, has so far said nothing at all.

Heavy lifting

Complaining about this will get us nowhere. Instead, it is incumbent on those who operate within the system to see what heavy lifting they can do for themselves.

Where the government has attempted top-down reform, poor performance has followed as sure as day follows night. The much-vaunted Damages Claims Portal is a case in point. Heralded by claimant and defendant voices alike as a potential digital saviour to the expensive chaos of the paper-based system that went before it, the reality has been so patchy that HM Courts and Tribunals Service (HMCTS) has stopped releasing performance data.

Those on the frontline report that most cases fall out of the process, often for reasons as small as one of the parties changing address or an injury prognosis being amended after expert medical evidence. A system that cannot weather such simple challenges is not one created with its users in mind.

We recently suggested to HMCTS officials that independent scrutiny of the new portal is overdue. The idea was greeted with very little enthusiasm but this does not mean it lacks serious merit. Consistent reluctance from those behind the scheme to involve practitioners at the design stage rather than after implementation has meant mistake after mistake and resources being taken up by the paperwork that the portal was designed to abolish.

This is just one example of a broader administrative failure to involve those at the business end of the justice system in its modernisation. Rather than bemoan this, it is better to act.

Sector-led solutions

Instead of waiting for the government to intervene, over the past few years the Association of Consumer Support Organisations (ACSO) has worked with other industry bodies to create sector-led solutions to problems. We did this during Covid, working with colleagues at the Association of British Insurers to make sure injury claims could progress despite the obvious issues the pandemic brought. We have been doing this more recently to address the thorny issue of medical reporting organisation fee breakdowns, as well as the friction that exists with rehabilitation in minor road-traffic accident cases.

“Where the sector can come together and come up with its own ideas, we are increasingly trusted to do so”

The message from the Ministry of Justice and the Civil Procedure Rule Committee has been clear and encouraging. Where the sector can come together and come up with its own ideas, we are increasingly trusted to do so. While there will always be a place for litigation and dispute, the role of co-operation is increasingly understood as a way to improve access to justice, reduce costs and improve outcomes.

ACSO’s members want us to push these issues up the political agenda. Our successful lobbying of the House of Commons’ justice select committee to hold an inquiry into civil courts delays is perhaps our greatest recent achievement. Its report, and the government response to it, could shape thinking for some years to come.

Where we are able to create alliances, it is because we focus on the one group which matters most of all, and that is consumers. Whether as claimants, defendants, insurance premium holders, taxpayers or simply our fellow citizens, they are why the justice system exists in the first place and why it needs to perform much better. The alternative is chaos and more of the shambles seen in recent times.

Matthew Maxwell Scott is the executive director of the Association of Consumer Support Organisations