New approach needed to civil justice reform

In his new report, called Improving civil justice reform – an analysis of major reviews in England and Wales, Dr John Sorabji says major reforms made to the civil justice system over the last 40 years have failed to remove the barriers that prevent 3.5 million people each year from getting the legal support they need.

The underlying reason for this, he argues, is that those reviews were too focused on what happens once people get to court and paid little heed to the difficulties they face beforehand – or to the opportunities at that stage to resolve their differences.

Civil justice is what happens when people, families or businesses have disagreements that need to be sorted out fairly, such as disputes about money, housing or contracts. 

In his report, Dr Sorabji calls for two new, permanent institutes to be set up, one for civil justice reform and the other for access to justice, to help ensure any future civil justice system reforms are carried out in full with long-lasting benefits.

He said: “Delivering enduring reform that transforms access to justice requires a fresh approach – one that is permanent, sustainably funded, evidence-based and centred on the public’s needs.

“Government should recommit, through statute, to the public right of access to justice, understood in a wider sense than simply access to the civil courts, and ensure it is effectively secured through the civil justice system.”

In his report, which was commissioned by the Nuffield Foundation as part of its Public right to justice programme, he looked at four major reviews of the civil justice system carried out over the last 40 years – the Civil Justice Review (1988), the Woolf Review (1994–1996), the Jackson Costs Review (2009) and the Briggs Review (2015).

His report acknowledges that those reviews have delivered some significant improvements to the civil justice system, such as the creation of a single set of rules for civil cases in England and Wales in 1999, known as the Civil Procedure Rules (CPR). Before that, different courts had different rule books.

But he argues that a key underlying problem stopping people from accessing the judicial system is socioeconomic – due to poverty or low literacy, people often lack the wherewithal, including the money, to get legal help. 

He says that access to justice should mean much more than just being able to go to court and that people should get advice early, understand their rights and be able to solve problems before they become serious.  

In his report, he describes how some of the four reviews’ reforms were undermined by what came next. For example, he says some recommendations made by the Jackson review were subsequently undermined by substantial cuts to legal aid after 2012 as well as failures to implement other recommendations properly, such as occurred with the creation of damages-based funding.

But rather than calling for the restoration of legal aid on a large scale, he argues that access to advice and representation must be treated as part of the justice system rather than as a separate issue.

The eight recommendations

The eight recommendations he makes in his report are:

1. Adopt a broad definition of civil justice and access to it. Future reviews and reforms of the civil justice system should not be “court-centric”. A broader understanding of access to justice should include consideration of how to tackle unmet legal need caused by, for example, poverty and social isolation. Access to justice should be understood as incorporating access to preventative, consensual and adjudicative justice.
2. Explicitly recommit to the idea that the civil justice system is a public good. If future reform is to be carried out effectively, there needs to be a recommitment by Government, set out in and supported by statute, that there is a public right of access to justice and that civil justice system is itself a public good that promotes the rule of law. 
3. Create a Civil Justice Reform Institute. A permanent non-judicial reform body – a Civil Justice Reform Institute (CJRI) – should be established by statute, the remit of which should be oversight of the civil justice system as a whole. It should specifically be responsible for promoting and developing future reform aimed at securing access to justice understood in the broad sense set out in recommendation one. 
4. Introduce accountable implementation. Implementation of future reform should be the responsibility of a single, identifiable body, which, if it is to work most effectively, should be a standing subcommittee of the CJRI and accountable to it and, through it, to the Government.
5. Secure a sound evidence-base – an Access to Civil Justice Institute. To facilitate the move to properly evidence-based reform, a permanent research institute – an Access to Civil Justice Institute (ACJI) – should be established. It should have the means to obtain and analyse data and other evidence from across the whole of the civil justice system.
6. Engage more fully with comparative approaches. There should be an increased focus on comparative study of civil justice systems from across the world and particularly their approaches to reform.
7. Successful reform requires piloting and testing. All future reform should be subject, where necessary, to mandatory piloting and testing to determine the extent to which it is likely to achieve its objectives.
8. Successful reform requires sustainable funding. To facilitate effective future reform, there should be a statutory duty on Government to provide the reform process, including the CJRI and ACJI, with sustainable funding. 

Dr Sorabji said: “If these eight recommendations were to be implemented, the commitment to reform and to improve access to civil justice evidenced by the four reviews, those who commissioned them, carried them out and, to varying extents, implemented them, can be channelled to greater benefit to the public than has been the case over the last forty years.”

Links

• Improving civil justice reform – an analysis of major reviews in England and Wales report
• Dr John Sorabji's academic profile
• UCL Faculty of Laws
• The Nuffield Foundation

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Nick Hodgson

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