More court delays and the state of the civil justice system

Matthew Maxwell Scott, founder and executive director of the Association of Consumer Support Organisations (ASCO).

What are the current challenges facing the civil court system? 

We have serious court delays right now, but this isn’t a new problem. They were getting longer before the pandemic, but they have got considerably worse since. Since 2019, the delays in multi-track and fast-track cases have gone up by 26.5 weeks, that’s about 6 months more. They’re now averaging 85.7 weeks while for small claims it’s 55.8 weeks, which is up by 17.7 weeks or about 4 months.  

Some important context is that the overall volume of claims going into the system is down, having peaked some years ago. In 2006 there were 2.1 million claims, but in 2023 it was only 1.7 million. So, we’ve got much longer waits despite there being many fewer claims.  

The impact this is having on consumers is huge. For every claimant, you’ve also got a defendant and there may be employers, friends and family affected. We’re talking about many lives that can feel like they’re on hold, all for the sake of a small claim. It’s all very frustrating.  

 

What factors are contributing to the delays in the civil court system? 

It’s partly down to government funding, with the Ministry of Justice receiving far less money than it used to. We’d love it if things could go back to historic trend levels, but we recognise that it’s not very realistic, even if there is a change in government.  

So, we really must see how HMCTS and the justice system can do more with the resources it currently has. The ongoing court modernisation programme has been repeatedly delayed, and although the National Audit Office hasn’t done a review of it for a while, clearly there are problems with its timetable and scope. If it was meant to make the court process slicker, more consumer friendly and cheaper, then clearly it is not working.  

 

“We’re talking about many lives that can feel like they’re on hold, all for the sake of a small claim. It’s all very frustrating.”

 

We also must consider how many fewer facilities there are, with 393 courts of different types closed in England and Wales since 1997. As well as longer waits, this also means that people must travel further to access them. When they get there, the quality of the facilities is, at best, mixed. Some courts, like Manchester, are relatively new, but some are literally falling to pieces.  

There’s also a postcode lottery, with courts in different parts of the country performing very differently. Unusually for our public services, it’s generally easier to use the system in the north, with London and the south east seeing more delays due to the size of the local population they’re having to serve.  

 

What are the consequences of reduced funding on the accessibility of legal support for consumers? 

When you strip a lot of money out of the system, for instance by restricting legal aid and putting in fixed costs, it means that there is less support available. We know from figures from the SRA that there’s an unmet legal need, with people not using lawyers when they perhaps should be.  

This is usually because they think it’s expensive or just find it scary, and don’t know where to start. This needs to be addressed because a lot of consumers can access help through a no win no fee arrangement, many lawyers will offer free consultations and a lot of people have legal expenses insurance (LEI) policies they can make use of. 

When it comes to court delays, the lawyers themselves are often blamed unfairly, when the problems are with the courts. There have been increased complaints to the Legal Ombudsman, and you can understand why.  

The law firms must then manage those complaints as well as their clients’ expectations, but until cases are settled, often they don’t get paid. 

There is also support from organisations like Citizens Advice, but again, resources are limited and generally patchy. There are various online resources, which is fine for those who know where to look and for those who are IT literate, but there are millions of people who aren’t. As ever, it tends to be the most vulnerable in society who are the most affected when public services don’t function properly.  

 

“Unusually for our public services, it’s generally easier to use the system in the north, with London and the south east seeing more delays due to the size of the local population they’re having to serve.”

 

What steps should be taken to address the issue of court delays? 

There needs to be more of a focus on these issues. The interest that some media outlets are beginning to pay in this is welcome, and we need to see that reflected in public policy as well. We’re lobbying the major political parties, especially Labour. We want a Civil Justice Commission formed after the next election, regardless of its outcome, to bring sector expertise together to look at the system and identify what it needs. 

We also need better data, as what is available is also patchy. HMCTS itself does not even have a published strategy or targets for dealing with the court delays and perhaps isn’t even sure how big the problem is.  

 

“When it comes to court delays, the lawyers themselves are often blamed unfairly, when the problems are with the courts.”

 

How do court delays contribute to inequalities in the compensation process? 

There is an inequality here. For the insurers as compensators, these delays aren’t necessarily bad news. Everyone knows that going to an actual court is Plan B, with Plan A being to get a fair and rapid settlement of a claim. The compensators know that Plan B is a very weak one right now when wait times are this long and the experience is this bad. So, they’re looking to discharge claims from their books, and the delays mean they’re more likely to have lowball compensation offers accepted. 

This poses a significant risk of under-compensation, because people, perfectly understandably, just want to reach settlement. Faced with the far greater resources of the compensators, the consumer is at the mercy of a system that isn’t working properly.  

 

Image: Provided by ASCO/Canva.