Should the Civil Courts be Unified? A Report by Sir Henry Brooke Judicial Office August 2008 From: The Rt Hon Sir Henry Brooke Royal Courts of Justice Strand London WC2A 2LL To the Lord Chief Justice Dear Lord Chief Justice As you will remember, nine months ago the judiciary was seriously divided over the proposals for civil and family court unification. Put simply, many senior judges (including the Chancellor) opposed the proposals, whereas the Council of Circuit Judges and the Association of District Judges expressed themselves to be virtually unanimous in their support. You first approached me about this matter before Christmas, and over the Christmas holiday I took the opportunity of reading the very large volume of correspondence and submissions from the judiciary which this controversial issue had generated. In early February you invited me to conduct an inquiry into the arguments for and against civil court unification. You asked me to devote one day a week to the task, and to submit a report to you before the end of July. I thought it best to conduct a large number of one-to-one interviews, and to visit all the major centres where civil business is conducted outside London, as well as the Central London Trial Centre and the Royal Court of Justice. I received wonderful help from everyone I saw. I was lucky enough to meet (or remeet) many dedicated judges and court managers during the course of my inquiry. I have included at Annex K a list of the people I interviewed, to all of whom I am very grateful. This is a long report because I did not have the time to write a short report. It is also a long report because I believed that we have been sleep-walking into a crisis, so far as civil justice is concerned, and I thought that the people who will be charged with the job of putting our civil justice system on its feet again should have a chance of seeing the whole picture in the round, so that they can understand why we have arrived at the position we are now in. If anyone doubts whether there is a crisis, I invite them to read Annex A of this report. As you will see, I have concluded that plans for civil court unification should not be proceeded with. On the other hand, I make a large number of suggestions about ways in which the arrangements for civil justice could be improved. Although I set them out fully in Part VI, I am also setting them out for convenience as a postscript to this letter. There are four matters I need to stress. The first is that I believe that no real progress can be made unless your successor and the Lord Chancellor and the Board of HM Courts Service are willing and able to agree on a five-year strategy for taking our civil justice arrangements out of the doldrums and making them something we can all feel proud of again. The second is that the introduction of modern IT systems (including electronic filing and document management systems) will be essential if any such strategy is to have any prospect of success. The third is that the arrangements for handling contentious civil business in London fall woefully short of what this country, and Londoners in particular, should be entitled to expect. The fourth is that I am very hesitant about including any statistics at all in this report because I have found so many mistakes. If anyone wonders why, I would invite them to read Annex J. - 1 - I am particularly grateful to John Sorabji, the Legal Secretary to the Master of the Rolls, for his monograph on the constitutional status of the judiciary which I have included as an Appendix to my report. Finally I would like to express my thanks to Andy Caton and Jackie Sears in the Master of the Rolls’s office, and to Kate Griffiths in your office, for providing me cheerfully with administrative support whenever I asked for it. The direct net cost of this inquiry, in fees and disbursements, will have been less than £14,000. 31 July 2008 This is a summary of my conclusions and recommendations: I conclude in my report that worthwhile changes can be made to the civil justice system without embarking on the unification of the High Court and the County Courts for the reasons I set out towards the end of Part V. I was invited to recommend future durable structures for the judiciary in the exercise of its civil jurisdiction. These recommendations are to be found in Part VI. I see nothing in them which conflicts in any way with the parallel arrangements now in place (or those planned) for the use of the judiciary within the criminal and family jurisdictions. My central recommendations are these: (1) The Lord Chancellor and the Lord Chief Justice and HM Courts Service Board should agree upon a five-year strategy for reviving the civil justice system, to be implemented collaboratively by the judiciary, the Ministry of Justice and HM Courts Service. (2) The strategy should include procedural reform, changes needed within the judiciary, adequate financing of the system on a long-term sustainable basis, the development and installation of the SUPS and EFDM systems and an adequate heavy-duty listing system, and the relocation of the Central London Trial Centre. (3) A critical path should be agreed for the delivery of this strategy, with agreed annual reports to report progress. I would hope that agreement could be reached on the necessary ingredients of this strategy within six months. I now summarise my more detailed recommendations: 1. Remove the jurisdictional limit of the County Court in Chancery and contentious probate matters (or raise the present limit of £30,000 by a large amount) following consultation and ensure that proper ticketing and supervisory arrangements exist for circuit judges and district judges exercising Chancery jurisdiction in the County Court. 2. Re-fix the financial value above which claims may be filed at the High Court following consultation, whether at £25,000 or £50,000. 3. Require all personal injury actions to commence in the County Court (except for clinical negligence and mesothelioma and other asbestos-related disease cases). - 2 - 4. Retain defamation, public law matters and certain human rights cases within the exclusive jurisdiction of the High Court, and review other instances of the High Court’s exclusive jurisdiction. 5. Make it possible to exercise a remedy similar to fi fa in the County Court, as an alternative to using the bailiff 6. Revise the criteria for retention of cases within the High Court or for transferring them up to the High Court, using the revised version of Mr Justice Jackson’s Committee’s criteria suggested in Section 5.2.2. 7. Create a new top tier of the County Courts in which heavy cases which do not have to be heard by a High Court Judge may be directed for trial by High Court Judges, retired High Court Judges, Senior Circuit Judges, Circuit Judges and Recorders without the need for deputy High Court Judges. Consider whether the County Courts should become a single national court, and whether it should be renamed the Civil Court 8. Retain the exclusive jurisdiction of the County Courts where it exists, but abolish the need for the Lord Chancellor’s concurrence to a High Court Judge sitting in the County Court. 9. Give Designated Civil Judges authority to make an emergency decision on an appeal from Circuit Judge in the absence of a High Court Judge (unless the appeal comes from a decision of the Designated Civil Judge himself). Review the provisions for appeals in insolvency matters. 10. Reduce the number of Queen’s Bench District Registries and Designated Civil Judges and broaden the authority of the Designated Civil Judges who should be based at the large centres. 11. Enable Senior Circuit Judges (with civil jurisdiction) and suitably ticketed Circuit Judges to grant pre-judgment freezing orders in the County Court. 12. Enlarge the powers of Registrars and District Judges so that they may make low level injunctions and similar orders in insolvency cases. 13. Bestow insolvency jurisdiction on the Central London County Court. 14. Make legislative provision whereby a decision of a judge who turns out not to have had jurisdiction to hear a case is prevented from being a nullity if the mistake was made in good faith. 15. Bring the contempt jurisdiction of the County Courts into line with that of the High Court. 16. If a case outside London should be heard by a High Court Judge, for which arrangements cannot be made on one of the High Court Judges’ routine visits (if any), place it in the relevant list in London so that a High Court Judge can go out and hear the case if it does not settle. 17. Phase out s.9 (4) Deputy High Court Judges (unless required in an emergency), and replace them by Recorders (civil only if necessary). In any event ensure that they are ticketed to hear County Court cases. Fee-paid judges hearing cases in the top tier of the County Court should all be paid at the same daily rate. 18. Gradually reduce the number of Designated Civil Judges, give all those who remain Senior Circuit Judge status and give Circuit Judges who exercise civil jurisdiction in smaller centres pastoral responsibility for the Circuit Judges and District Judges in their area, with a suitable financial allowance (but no special status) - 3 - 19.