More and better for less

By | 31st October 2013

The new Lord Chief Justice of England and Wales is already out of the starting blocks!

Taking office at the start of October, Lord Thomas of Cwmgiedd (a small village in the Brecon Beacons) addressed the members of Gray’s Inn on October 21st.  Delivering the annual Birkenhead lecture,  he sought to address the issues facing the administration of justice today.

It would take far too long to list all the problems facing the administration of justice, but His Lordship identified ten problem areas.

The text of his lecture is here.

Unsurprisingly, one of the areas he identified early in his list was the growth in the cost of litigation. Despite the Woolf and Jackson reforms introduced over the past 15 years or so, the cost of litigation is “still far too great.”

The users of the courts are, according to Lord Thomas, looking for “more and better for less”, an objective which contributors to this blog have supported since its inception.

Ranging over Magna Carta and the endless journeys of one Richard de Anesty seeking to make his case to the King in the 12th century, the judge’s main theme was whether justice should be delivered in one place or several. Not surprisingly, given that the cost of litigation varies from place to place, the LCJ comes down in favour of increasing the provision of justice outside London.

Conscious that few of our courts have modern facilities to enable trials to take place without paper, the judge bemoaned the fact that the MOJ effectively ran out of money some years ago while investing in new software and starting to rewire the courts. That attempt to make efficient use of modern technology ran into the cold sands of economic reality and, as he pointed out, now, some ten years later, WiFi has rendered most of the rewiring unnecessary but the software still dates from the 1990s/early 2000s!

Others have questioned whether the hourly rate of charging for litigation can or should survive. While Lord Justice Jackson agreed in his preliminary report that no one had come up with a system to replace the hourly rate, Lord Thomas now questions its survival once more. 

He said this:

Technological advances do not just mean that the nature of competition and pricing is likely to change. It also means that there is a real opportunity to reverse the recent historic trend that has seen London gain the largest concentration of the legal profession. Overheads in London are inevitably higher than elsewhere. Relocation outside London, with perhaps only the retention of a small branch office there with conference facilities may become the norm over the next decade or so. Justice outside London cannot but gain from this. And the spur to greater competition outside London would again serve to lower costs and render justice more affordable.

He is, of course, not the first  both to criticise the hourly rate and sing the praises of technology. I doubt if he will be the last. We all need to get used to the idea that the courts really do believe that using technology is one of the ways by which costs may be reduced. After all, the main thrust of the changes to the rules earlier this year with the emphasis on judicial mangement of cases and costs budgets is to achieve exactly that result.

The Lord Chief Justice believes that one of the other ways by which costs may be reduced is to encourage the establishment of courts outside London which have the expertise to deal with commercial cases in the regions using local counsel and solicitors qualified to do the work. On the basis that regional costs tend to be lower than the same costs incurred in London, this will. of itself, tend to reduce the cost of litigation. London is not to be left in the cold. The LCJ believes that there will always be a place for specific types of work and certain types of cases being dealt with in London. He cites the Commercial Court as an example, while at the same time announcing his support for suitable commercial or mercantile courts such as already exist in Birmingham, Bristol and Leeds.

Lord Birkenhead would have approved.