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Civil Court Structure Review - The Enforcement Perspective

Lord Justice Briggs has completed his final report following his review of the Civil Court Structure in England and Wales. This report follows on from his earlier, interim report which was published at the start of this year.  The review has been very wide ranging encompassing all aspects of the civil courts and their working practises.

Among the judge's many recommendations is the setting-up of an Online Court designed to be used by 'ordinary' people with only minimal assistance from lawyers and with its own set of 'user-friendly' rules.  It is intended that the court should become the compulsory forum for resolving cases and at its inception should begin by dealing with money claims valued up to £25.000.  More complex and/or important cases would be transferred to the higher courts.

The judge also proposed the establishment of Case Officers to assist judges with some of the basic administrative work, freeing them up to spend more time carrying out their judicial role.  A further recommendation was for improvements in the availability of mediation and Alternative Dispute Resolution (ADR).

Significantly the judge did not recommend unification of the civil courts which was one of the major issues to be considered by the review.  However, he did conclude that that there should be unification of the enforcement service, adopting the best of the current three systems: High Court Enforcement Officers, Private Enforcement Agents and County Court Enforcement Agents.  He recommends that the County Court should be used for the enforcement of judgements and orders of the High Court, County Court and Online Court.  However, he acknowledges the current shortcomings within the County Court Enforcement System and takes the view that urgent steps need to be taken to address what he sees as the under-investment and consequential delays which undermine the quality of the service. He takes the view that one of the problems with the current County Court Enforcement Service is the lack of incentive for those performing the work as against High Court Enforcement Officers and Private Enforcement Agents.  The judge's recommendations on enforcement are however qualified in that he believes there should be a separate review of the strengths and weaknesses of the three arms of the enforcement profession before making a final decision.

The judge recognises that there will be a cost to setting up a unified enforcement service and that in these economically straightened times within government there may not be the resources to carry out out such a fundamental change.  As an alternative to his main proposal he believes that the current system should undergo a process of "centralisation, harmonisation, rationalisation and digitisation" to bring it up to anything like the standards required for the modern courts.

The judge has now concluded his role in the process and, following publication of his report, it is now over to the Ministry of Justice to decide how to carry it forward.  It is important to know what the department's view is of the Briggs report and its conclusions.  In particular, we need to know whether it is prepared to consider any changes to the current enforcement system and if so, whether it favours total unification as proposed or the compromise solution. 

The judge himself acknowledges that a review of enforcement can only take place when resources permit.  He says in his report that the procedure for unifying enforcement would require "...no small amount of work on changes to procedure rules...".  At a time when the Ministry of Justice will probably to be heavily engaged in reviewing regulations, post-Brexit, it seems unlikely that it will want to embark upon a thorough fundamental review of the enforcement service.

It is important that all those involved in enforcement, whether creditors, debtors, enforcement agents or the advice sector, bring pressure to bear upon the department to produce at least an initial response to the Briggs report. No-one wants this report to end up sitting on a shelf because it is "too difficult" to deal with.  It may be a challenge, but it is certainly one worth confronting.