Keoghs Insight

Author

Natalie Larnder

Natalie Larnder

Head of Market Affairs

T:07890050592

How do we deal with a problem like the Court backlog?

Client Alerts02/07/2021

Covid-19 has a lot to answer for – including additional pressure on a court backlog that could see you wait years to resolve a claim.  The backlog came under recent scrutiny when the Lord Chief Justice, Lord Burnett of Maldon, suggested reducing the size of juries to help reduce the Crown Court backlog which has been exacerbated by Covid, and saw an increasing backlog of cases (from 39,000 pre-pandemic) reach a staggering 56,000[1] cases at March this year.

The Crown Court isn’t alone in its backlog however, with all areas of law and all courts in the jurisdiction suffering ever-increasing delays.  These backlogs are nothing new and were ever present before Covid, however multiple lockdowns, social distancing, and a network of courts struggling to keep up with demand for court time whilst applying with the necessary Public Health England guidelines for operation during the pandemic, have all resulted in significant additional delays to the administration of justice. 

It would be wrong of me not to acknowledge the huge efforts those working in the courts and tribunals service have gone to in order to keep the wheels of the justice system turning during the pandemic – hearings where possible moved online and temporary Nightingale Courts were opened, with existing buildings adapting to facilitate social distancing.  But this hasn’t been enough for a court system which was already on its knees due to a lack of funding, which has seen a 21% reduction in Government spend and 40% reduction in legal aid budgets in less than a decade.

The House of Lords Select Committee on the Constitution published their report on Covid-19 and the Courts on 30 March this year, in which they noted that actions that might have been capable of alleviating the effects of the pandemic had not been taken, with a reform programme intended to modernise court technology and processes running behind schedule and struggling to deliver its intended improvements. 

Whilst the challenges Covid has presented to the court system are very apparent, the House of Lords report also notes the opportunity it has presented to improve the experience of technology in courts and promote further reform.  The report acknowledged how virtual proceedings for case management conferences, preliminary matters, trials without evidence and commercial cases were all seen to work particularly effectively. 

A call has been made by the Select Committee for more data and analysis on the effects of remote proceedings on the outcomes of cases and the satisfaction of participants in them[1], with a particular note of concern about access to justice for unrepresented litigants and those with limited or no access to the necessary IT for remote hearings.  My hope is that any such call for evidence is expedited and does not lead to further reform delay. 

At present on the civil justice side of the courts the Online Civil Money Claims provides a digital service for the pursuit of non PI claims for a value of up to £10,000.  The new OIC portal provides a platform for whiplash injuries with a duration of symptoms up to 24 months and the Claims Portal is a tool for processing personal injury claims up to the value of £25,000.  This leaves a glaring gap for personal injury claims over £25,000 and other civil claims over a value of £10,000.  The Master of the Rolls, the Right Honourable Sir Geoffrey Vos, gave a speech recently to the London School of Economics in which he set out his ambitious hope that the entirety of the civil justice system would move to an online system in the future, with face-to-face trials for some cases started online where appropriate. 

And so what now?  A potential call for evidence as to the effects of remote proceedings during Covid and a push for the already delayed reform programme to redouble its efforts.  No doubt Government and the MoJ will be watching the new OIC Portal with interest and if they have any sense they might consider adapting or extending one of the existing online platforms to accommodate a broader spectrum and higher value of civil claim.  Until such time the use of technology for virtual hearings wherever possible is set to continue well after the impacts of the pandemic start to ease. 

[1] House of Lords Select Committee on the Constitution report – Covid-19 and the Courts, para.292

[1] House of Lords Select Committee on the Constitution report – Covid-19 and the Courts, p.8