Our anonymous Deputy District Judge columnist ponders the changes sweeping through the courts system, both good and bad, and their impact on the judiciary, litigants and access to justice.
There are major changes underway in the courts system. Court buildings are closing, digitalisation is on the way, and various pilots are currently running. It is more difficult for a Deputy District Judge (DDJ) to feel part of this than a salaried judge, as we work part-time and are not allocated to one particular court, and so it often feels like we’re playing catch up. I arrived in court to find new screens and videos installed, not ready for use, no one trained to use them, and unavailable to DDJs (at least for now). We (well, no DDJs I know) still can’t even access judicial laptops, and I still have to write long orders and ex tempore judgments by hand.
There is some positivity about change - money needs to be saved and modernisation is essential, but concern remains about the impact of budgeting and the increase of litigants in person (LiPs) as a result. From a judicial perspective, hearings take longer with LiPs and it is essential to ensure they understand proceedings without advising them or being anything other than neutral. Managing warring LiPs is also a particular challenge.
There is consultation underway about introducing different venues and timetables for courts, to maximise use of the judiciary and hearing centres, with split sitting days and possible evening and weekend courts. On the one hand, this would save expense, lessen delays and provide flexibility; on the other, it is not exactly conducive to family life, which is one of the many objections aimed at these proposals. Personally, I favour flexibility with sitting days and acknowledge the potential cost saving, but working families are already under immense strain and their valid concerns must be considered very carefully.
A recent pilot saw the introduction of settlement conferences (SCs) in Children’s Act 1989 proceedings. They are confidential and voluntary; no evidence is taken or decisions imposed. Rather, it is an opportunity for parties to explore settlement with the assistance of a judge (CAFCASS or the local authority, if involved in the case, attend too) and the judge will not hear the case thereafter if it does not settle. Lots of litigants, particularly those appearing in person, are unaware that SCs exist, so it is up to the legal representatives and us judges to inform them at every stage of proceedings. I hope the pilot is successful and SCs are introduced across the country, because they have the potential to facilitate settlement in many cases, which will save time, cost, uncertainty and the distress of protracted litigation. At the moment, only a handful of full-time judges can conduct SCs, but if they become part of family court procedure, I hope training will be available to us DDJs too.
The new online small claims system should save time and expense in the long term. Virtual hearings (as an alternative or addition to oral hearings) would resolve any concerns about evidence not being properly heard. Online litigation would ease the huge administrative overload of the court and release time for other cases, improving listing schedules. However, the older generation or those without access to computers, may struggle with or be excluded from online procedures, which inevitably raises the question of fairness. Then there is the proposal for fixed whiplash damages and an increase in the personal injury small claims limit to £5k, both of which are causing heated debate. They would obviously involve changes to court procedures and require more judicial training.
As of May 2018, online divorce is now available to unrepresented individuals following a successful pilot, making divorce quicker and simpler. A procedure for lawyers will follow. After the introduction in January of the facility to upload documents and pay fees online, digital intake has apparently increased by 130 per cent and errors reduced from 40 per cent for paper applications to seven per cent once submitted online; that is now put at one per cent. I see virtually no divorce paperwork in court since it was centralised at Bury St Edmunds, and the case is only sent to regional courts if defended, or when financial proceedings begin. Initially, complaints emerged of severe delays, but this has improved. Our boxwork (eg paper applications and correspondence, dealt with between hearings or at the end of the sitting day) typically included numerous divorce applications, but no more. For a long time, I haven’t had a decree nisi list to pronounce in court, for the same reason.
The current topic of conversation is whether there will be a change in divorce law to remove blame. The case of Owens v Owens came before the Supreme Court in May and judgment was handed down in late July. Is it nonsense for a couple whose marriage is effectively over (Mrs Owens is adamant she will never reconcile with her husband) to spend time and money in court to decide if the ‘fact’ of unreasonable behaviour is met and, ultimately, for the wife to be denied a divorce until she can petition in 2020 after five years’ separation? Mrs Owens’ lawyers argued that rather than focusing on whether Mr Owens’ behaviour was unreasonable, the question for the court should have been whether his behaviour was such that she cannot reasonably be expected to live with him.
The court ruled, however, that Mrs Owens had failed to establish an irretrievable breakdown of the marriage on the behavioural ground pleaded, as required by the law and as the law is written. It held that it is not for the judiciary to change the law, but for Parliament, and as such, the court is bound by the law. It is said some justices reached this decision with reluctance. This case highlights that divorce reform may be needed more than ever, if the judiciary is to serve effectively the modern family unit.
So, changes ahead for us in court: some well-received, others still being processed. Important concerns about access to justice will not go away. Keeping abreast of change is imperative, and for me, it’s one of the attractions of the DDJ role.