The civil courts and public confidence

– David Allen Green, lawyer and journalist

England was once a country of counties. And in these counties there were county courts, where local people and businesses could go to assert their private law rights and defences against other people and businesses. These civil law courts complemented the criminal courts where prosecutions were brought.

The stuff of the county courts was the various types of mundane private law that binds communities, societies and economies together: contract law, negligence and other torts, property and housing law, family law, and so on. The county courts provided the means by which disputes would ultimately be resolved, and where damages and other court orders were granted to compensate or protect injured or otherwise wronged parties. As such the county courts were a fundamental and essential part of our everyday civic order. They were a social glue.

But now that glue is dissolving. The notion of a county court in every sizeable town is as quaint as a red telephone box or blue police lamp. Up to and including the 2010s there were mass closings, in the name of efficiencies, by governments of all parties. They were seen as an easy target within the budget of the Ministry of Justice (MoJ), a ‘super’ department founded in 2007 by bringing together the old Lord Chancellor’s department (which looked after courts) and the prison and probation parts of the Home Office. This new ministry was to provide a coherent and indeed ‘holistic’ approach to the administration of all justice in England and Wales.

Instead, in civil justice and other areas of its responsibilities, the MoJ has ended up presiding over a legal system in decline. In the headline areas of criminal justice, probation and prisons there are constant problems and crises. Criminal justice is plagued by delays and underfunding, probation is close to collapse, and the prisons are in chaos. These are the areas that command political and media attention in a society fearful of crime and social disorder.

But it is in the remaining county courts – which were ‘nationalised’ under the Conservatives in 2016 to be a national ‘county court’, effectively with local branches – where the ragged effects of austerity and lack of investment are most stark. Their desperate state was picked up in the last Parliament by Conservative MP Robert Neill, the lawyer who then chaired the Justice Select Committee in the House of Commons. At a liaison session of committee chairs, with the prime minister, Neill devoted half of all his available questions to the topic.[ref] UK  Parliament.  2024.  Liaison  Committee  –  Oral  evidence:  Work  of  the  Prime  Minister,  HC  572.  Available  from:  https://committees.parliament.uk/oralevidence/14571/pdf/. [/ref] After the general election, in which Neill sadly stood down, his Labour successor as Justice Committee chair, Andy Slaughter MP, moved to reopen the inquiry into the troubles of the county courts that Neill had been overseeing until the election intervened.[ref] Castro,  B.  2025.  Justice  committee  to  probe  the  work  of  the  county  court  amidst  growing  delays.  Available  from: https://www.lawgazette.co.uk/news/mps-to-probe-county-court-work-amid-growing-delays/5122089.article. [/ref]

The evidence provided to the select committee is dismal and depressing. There is chronic understaffing. Correspondence routinely goes unanswered. It is almost impossible to communicate with the staff at most county courts, either by email, telephone or even in person. Court orders are sent out months after any deadline. And this is not because of choice, but the lack of resources. The few resilient individuals who do work there are keeping the courts working by goodwill and ruthless prioritisation.

The IT is almost non-existent in county courts – and it has become a standing, if unfunny, joke among lawyers and other court users. Nearly all county courts are, internally, paper economies, with bundles of documents being shuffled from shelf to shelf, often getting lost or mislaid. No useful electronic information is available to the parties. Barristers are instructed to attend hearings which the parties have properly agreed should be vacated, because nobody knows if the court itself has read the relevant notification. (These are the problems euphemised by the MoJ as “technical debt”,[ref] Ministry  of  Justice.  2025.  MoJ  Digital  Strategy  2025.  Available  from: https://assets.publishing.service.gov.uk/media/62446f6ce90e075f0e1447bc/moj-digital-strategy-2025.pdf.[/ref] which the National Audit Office only half translates for us as “suboptimal digital systems”.[ref] National  Audit  Office.  2024.  Departmental  Overview  2022-23  –  MoJ.  Available  from: https://www.nao.org.uk/wp-content/uploads/2024/02/ministry-of-justice-departmental-overview-2022-23.pdf.[/ref])

There are not enough judges. Adjournments and postponements because of a lack of judicial availability are a norm. Indeed, as I type this I have heard of a case where there has been an adjournment of a preliminary hearing that was due tomorrow (in early 2025) relating to a claim that had been brought back in 2021. None of this will surprise any court user. It would have instead been more astonishing had the case had gone ahead. There will probably be many more adjournments.

There are some litigants for whom this dire situation is fine or even provides opportunities. The pile-them-high bulk litigation law firms can happily go on their automated way. They don’t care because the efficiency of scale means they keep some profit margin, regardless of the system failures. And a certain type of litigant in person (those navigating the justice system without legal representation) can keep their worthless claim or defence going for years because there is no means or will to bring such things to any end.

But for any normal person, the county courts are increasingly, as one organisation of court users called them, a “nightmare”.[ref] UK  Parliament.  2023.  Written  evidence  submitted  by  The  Civil  Court  Users  Association  (WCC0057).  Available  from:https://committees.parliament.uk/writtenevidence/127179/pdf/.[/ref] They are the sort of thing which an English Kafka and a provincial Dickens would concoct together. They combine the horrible faceless uncertainties of The Trial with the all too familiar human follies of the Victorian Court of Chancery.

If you are, say, a local business owed substantial sum of less than £100,000 then it would be more sensible and rational to drop any legal action than fight a contested case. The benefits for peace of mind and the savings on management time would be worth it. And even if the claim is uncontested then actual recovery will be difficult if not impossible. The only hope is that the threat of a county court judgment is enough. It is only the prospect of an adverse entry on a credit file that means county courts are taken seriously by many debtors, not the legal process itself.

For many the notion of civil justice is now a fiction. The court fees – which are effectively non-refundable – now are beyond what many people can afford. There is almost no legal aid. There are fewer and fewer courts, and the delays now last for years. And even if one gets judgment the stress begins afresh with seeking to enforce the decision of the court.

Loreless realm

As the knowledge of the inefficiencies of county courts becomes widespread, there is danger. This is because the way that law works practically in society is as lore. In day-to-day life, the law is what people believe it to be – and what they believe will actually be enforced. Many people have a good working knowledge of what they (think they) can and cannot do, “within their rights”. But over time this working knowledge will evolve to discount any threat of local court action – just as people ‘know’ what the police will and will not be bothered with if a report is made. The loss of popular credibility to a court system would then be a serious, potentially irreversible, problem.

To grasp the nature of that problem, it is worth pausing on those two forms in which law exists. There is what can be called the technical, Black-letter law – the sort of law that is studied in universities and is practised by learned professionals in offices and court rooms. It is also the law of unread terms and conditions, privacy policies, and council notices of by-laws. This is the official law which only a few obsessives would care about if it were not part of certain people’s jobs.

And then there is the law in practice – more lore than law – which is what people in the street and in their homes, in shops and workplaces believe the law to be. This is a mix of substantive rules (“that is against the law” or “I know my rights”) and an understanding of how the law is and is not enforced (“I will call the police” and “see you in court”).

But as people’s experience of the courts declines, the mismatch between law and lore becomes dangerous. People will lose confidence that they can enforce the law – or no longer believe that the law can be enforced against them. They may even come to believe that compliance with the law served no purpose. And they will get used to their interests being protected by other means. Instead of there being a single open standard of legal fairness, we will become familiar with lots of private devices to determine disputes.

In commercial matters the lack of confidence in civil law is already giving rise to many other forms of adjudication: arbitration, mediation and so on. In consumer matters, many websites now have their own forms of dispute resolution which are funded by purchasers or vendors as part of their fees. Deposits are demanded and ‘escrows’ (or bonds) provided. There are scores of ways emerging by which parties engaged in trade can allocate risks between themselves rather than use the legal process to protect their rights.

But the risks of no realistic court enforcement are then priced into premiums and other costs of insurance, which might end up being paid by traders or instead passed on to their customers. Moreover, the specifics of these risk-reallocation arrangements are imposed by terms and conditions that overwhelmingly go unread. Such standard terms can, depending on the circumstance, be challenged – at least in theory. But in practice, unfair contract terms and unreasonable exclusions and limitations of liability are rarely litigated.

A question of leadership

Where is this heading? Towards a world in which, unless something exceptional has happened, then the old adage of caveat emptor – let the buyer beware – prevails. It will be a less secure world for most of us, and also a world in which terms of trade are prescribed by those with market and technological power. People will still believe in the law, but there will be less and less public confidence in the courts to enforce the law. And this may, in turn, create new legal, social and economic problems when the full effect of unfair terms, and of unreasonable exclusions and disclaimers, come to be seen.

As things stand, there is no real prospect of improvement. The MoJ is not a well-funded department, and the priorities of that department are prisons, probation and criminal legal aid – all of which have their own severe problems. The only way to restore the courts themselves and the trust they support involves political leadership. That means politicians individually and political parties generally making a positive stand on having a functioning civil court system. It means being weaned off easy jibes and jeers about judges and the legal system. This is unlikely to happen. Even those lawyers who get to the top of the ‘greasy pole’ like Tony Blair and Keir Starmer have not and will not offer such leadership. It is just not seen as politically advantageous.

And so we are looking at continuing drift. There will not be a sudden dramatic collapse. Instead, what will happen is that over time the general lack of availability of the courts will become an accepted part of everyday life. There will be exceptions for certain major matters, but the routine daily work of courts will become slower and more distant.

There is an old phrase that possession is nine points of the law. Depending on the property lawyer you speak to, that may or may not be a sound phrase. But it could also be said that public confidence is nine points of a legal system, and when that public confidence goes – and there is little now on which it can rest – it may not be easy for it to be restored.

Politicians and pundits will one day regret this ongoing collapse of the justice system, and wonder how on earth we ended up in this predicament. Perhaps they will blame the courts.

The Nuffield Foundation has commissioned this project, but the views expressed are those of the authors and not necessarily the Foundation.