Dispute Resolution: Looking Ahead to 2023 and Beyond
As we move into 2023 the landscape of dispute resolution is changing. We consider below the main developments which we consider will affect those involved in dispute resolution in England and Wales in 2023.
Alternative Dispute Resolution
With the numerous economic pressures on individuals and businesses alike we are anticipating that whilst disputes will continue to rise in number during 2023, traditional litigation will be shunned in favour of cheaper, quicker and more conciliatory processes. Mediation centres from around the world show that the numbers of those choosing to mediate are growing with new facilities being opened on a regular basis. Recognising that mediation has a positive impact on litigants in terms of time and money as compared with traditional litigation the Civil Procedure Rules (“CPR”) specify that, in most cases, parties to a dispute must consider engaging in alternative dispute resolution and any failure to do so gives the court a wide discretion when dealing with costs. Further to that, on 26 July 2022, the Ministry of Justice (“MoJ”) launched a consultation on the government's proposal to introduce automatic referral to mediation for all small claims (generally those claims valued under £10,000). The consultation closed on 4 October 2022 and a final report is awaited this year.
On the issue of enforcement of mediated settlements, on 2 February 2022 the MoJ launched a consultation on whether the UK should become a party to the Singapore Mediation Convention, which aims to formulate and implement an international framework for the enforcement of mediated settlements. Without the convention, a party wishing to enforce a mediated agreement overseas would first need to obtain a judgment for breach of the agreement. It may be that the judgment awarded would then need to be enforced overseas. However, under the Convention, parties to a settlement agreement which has been signed in one country will be able to invoke it in another provided the country in which endorsement is sought is a member of the convention and the settlement agreement is within the convention’s scope. As a leading dispute resolution forum it seems that the Convention would be consistent with the UK’s role in this developing area. The consultation closed on 1 April 2022 and a response is also awaited this year.
A Digital Age
It is clear that new technologies are continuing to change the way things are done across business and personal life. We live in a rapidly developing technology driven world and the our dispute resolution provisions will need to keep a pace.
On 18 February 2022, the Law Gazette reported that the dispute resolution committee of Birmingham Law Society had started a petition to end the rules on email service on the basis that they are: "cumbersome, inefficient and costly", "unnecessary, outdated and present an opportunity for tactical game-playing". Following ongoing criticism the Civil Procedure Rules Committee (“CPRC”) has stated that it intends to start work on a review of the rules on email service (PD6A) and it is expected this work will take place shortly.
Last year saw the Judicial Review and Courts Act 2022 receive royal assent which legislates for online procedure rules and an online procedure rule committee. HMCTS has stated that in 2023 it wishes to work towards delivery of new digitised services for the remaining tribunals, family and civil case types within the scope of the reform programme, including online civil money claims, damages claims, possession claims and enforcement work.
Hearings lists for the Civil and Family courts and the Single Justice Service were expected to be published by the end of 2022, but are not yet available. This is an online service which ultimately will be used for accessing court and tribunal lists in England and Wales and should be published shortly.
The County Court Money Claims Centre (CCMCC) is in the process of merging with the County Court Business Centre (CCBC) with the process to be completed by May 2023. It is understood that the new combined centre in Salford will be known as "The National Civil Business Centre (NCBC)".
Furthermore, in light of all the above and more, it is hoped that 2023 will take strides towards a holistic integrated digital justice system being operational for family, civil and tribunal cases in 2024. A truly paperless system focused on the resolution of disputes which will be revolutionary in a major developed economy.
Following the UK's exit from the EU on 31 January 2020 retained EU Law was created at the end of the transition period which consisted of EU-derived subordinate legislation preserved in our domestic legal framework by the European Union (Withdrawal) Act 2018 (the “Act”). The Retained EU Law (Revocation and Reform) Bill 2022-23 was introduced to the House of Commons on 22 September 2022. This Bill makes provision for significant changes to the current status, operation and content of retained EU law including through amendments to the Act. If enacted in 2023 all retained EU law will be revoked on 31 December 2023 (or at a later date prior to 23 June 2026 if a consensus to delay is reached) unless Members of Parliament take steps to codify it into UK law. The Bill potentially unpicks circa 4,000 bits of legislation relating to key areas including health and safety, environmental and consumer protection and it seems a huge task for government departments to be able to review and assess every piece of retained EU law within the timescales required. In light of the seismic task in hand, some commentators have suggested that the Bill may be canned and given the UK agreed with much of the retained EU Law when we were a member of the EU it does seem sensible to keep much of it and deal with any errant parts as and when they arise rather than throwing the baby out with the bath water. Watch this space!
On 28 June 2022, the Law Commission announced that the Ministry of Justice (MoJ) and Attorney General's Office have asked it to review the law on civil and criminal contempt of court. The review aims to provide a clearer set of laws and rules that will help to ensure that the law of contempt works as a principled, comprehensible and fair regime for all parties. The Law Commission initially planned to publish a consultation paper at the end of 2022, inviting views on provisional proposals for reform, but this has since been extended to spring 2023.
On 7 November 2022, it was reported that the Bill of Rights Bill 2022-23, which will repeal the Human Rights Act 1998 and reframe the UK's legal relationship with the European Convention on Human Rights, will resume its passage through Parliament "within weeks". The Bill had been dropped by the Liz Truss government before its second reading.
The Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague Judgments Convention) was concluded in July 2019 and will enter into force as between the EU (except Denmark) and Ukraine on 1 September 2023. If the UK accedes to the Hague Judgments Convention, it should make English judgments more widely enforceable in foreign countries once it is taken up further by the international community, but only in relation to judgments given in proceedings commenced after a date approximately one year after the UK's accession. On 15 December 2022, the Ministry of Justice (MoJ) launched a consultation on whether the UK should become a party to the Hague Judgments Convention. Responses should be submitted by 11.59 pm on 9 February 2023 via email to PIL@justice.gov.uk or via post to Private International Law, International Justice Policy Division, Ministry of Justice, 9th Floor, 102 Petty France, London, SW1H 9AJ. A paper summarising the consultation responses will be published in spring 2023 on the GOV.UK website
Changes to the Civil Procedure Rules
Every year sees a number of amendments to the CPR and 2023 will be no exception.
We await the draft rules regarding the extension of the fixed recoverable costs regime which is anticipated in the autumn and is expected to extend fixed recoverable costs to all civil cases assigned to the fast track up to a value of £25k. We’re also expecting the introduction of an intermediate track to which fixed recoverable costs will apply for some cases that will not exceed 3 days at trial and have a damages value between £25k-£100k.
It is expected that all fast track and intermediate track cases will be allocated to one of four bands dependent on an assessment of their complexity to assist with case management decisions.
As regards Part 36 offers, we are expecting to see an allowance for an increased uplift (36%) where a party fails to beat an opponent’s offer; an uplift of 50% where a party has behaved unreasonably; an uplift of 25% for each additional claimant and a London weighting of 12.5%.
As regards costs more generally, a working group has been undertaking a review of costs and the scope of that review is to be extended to include an assessment of the costs budgeting rules, the use of the hourly rates and the impact that the pre-action protocols have on costs. The working group held a public consultation between June and October 2022 and we anticipate that a report of their findings and recommendations will be released at some point early in the New Year.
We were expecting the CJC’s final report on its review of the pre-action protocols in spring 2022 but it didn’t materialise. This year could see the report and an updated Practice Direction on Pre-Action Conduct and Protocols.
The CPRC is working on a project to simplify the CPR in a phased way, focusing on drafting amendments rather than substantive changes. Proposals will be published for comment before changes are introduced with changes expected to:
CPR 14 (Admissions)
CPR 17 (Amendments to Statements of Case)
CPR 38 (Discontinuance)
CPR 19 (Parties and Group Litigation)
CPR 20 and PD 20 (Counterclaims and other Additional Claims)
CPR 44.14(1) – regarding set-off
Changes will come into effect in April 2023 so watch this space if you have the need to refer or rely on any of these rules.
It is anticipated that the change to CPR 44.14(1) as referenced above will be a reflection of the decision in Harrison v University Hospitals of Derby & Burton NHS Foundation Trust  EWCA Civ 1660 which limits or reduces the effect of an earlier decision that where sums are payable under a schedule to a Tomlin order, or following Part 36 acceptance, no damages or interest have been "ordered" and so the defendant cannot set off its costs orders against anything it has to pay
There have been a number of pilot schemes in recent years with the Electronic Working pilot scheme (PD 510) expected to be moved out of the pilot provisions and into the mainstream rules in 2023.
The Online Civil Money Claims (OCMC) pilot is operating until 30 November 2023 in the County Court under PD 51R and thereafter is expected to replace Money Claim Online. The pilot is aimed at providing a quicker, more user-friendly way to start an action in the County Court for amounts up to £25,000. Defendants may respond online or on paper to claims and the time limits are different from an ordinary County Court money claim started outside the pilot. Claims involving a maximum of three parties are permitted where the parties are legally represented
A new edition of the King's Bench Guide providing guidance to the working practices of the King’s Bench Division is due to be published in January or February 2023 so watch out for this if your case is being heard in this court!
And Finally …
We will try to keep you updated on any major advances as and when they happen throughout the year but please feel free to call us to discuss any concerns or queries as they arise.
Posted on 01/12/2023 by Ortolan