Overview
Executive summary
This report examines four decades of major civil justice reform efforts in England and Wales. It does so because, despite those efforts, there remains a very significant access to justice deficit. England and Wales remains, as the World Justice Project identified in 2023, behind comparable countries where its ability to deliver access to justice is concerned. Our civil justice system remains overly complex; many litigants must litigate, when they do so, without legal advice or representation; litigation cost remains high; and delay remains present as, for instance, data published by the Law Society and His Majesty’s Courts and Tribunals Service illustrate and the Justice Select Committee has recently concluded.
The report’s specific focus is four official, i.e., Government- or Judicial-commissioned, reviews of the civil justice system (the four Reviews):
- the Civil Justice Review 1988, the aim of which was to reduce litigation time and cost through recommending improvements to civil court structure, practice and procedure;
- the Woolf Review (1994–1996), the aim of which was to fundamentally reshape the approach to civil litigation to increase ‘access to justice for all’ by reframing civil court practices and procedures to promote early settlement and manage disputes consistently with the aim that they were resolved via judgment reached at proportionate cost;
- the Jackson Costs Review (2009), the primary focus of which was to conduct a fundamental review of the costs of civil litigation and make reform recommendations to reduce such costs and thereby increase access to justice; and,
- the Briggs Review (2015), the primary aim of which was make recommendations that would influence the Reform programme that Her Majesty’s Courts and Tribunals Service had embarked upon to digitalise the civil courts. It, particularly, was to consider how to create a digitalised court that would be genuinely accessible to individuals who litigated without legal assistance.
The report, which is based on a critical assessment of the Reviews and relevant literature relating to them, identifies the four Reviews’ specific objectives and approaches to the reform process. It discusses their recommendations and the manner and extent to which they were implemented. It concludes that – notwithstanding the very significant commitment from the judiciary, legal profession, and successive Governments and Parliaments to reform, not least by those who carried out and informed the Reviews and devised their recommendations – while they did introduce some improvements to access to justice, the Reviews did not effect lasting improvement. Unmet legal need remains acute.
The report examines these Reviews for a specific reason: if we are to improve our ability to devise, carry out and implement transformative and enduring reform that improves access to justice, and thus reduces significantly unmet legal need in England and Wales, we need to understand how previous reforms were carried out and what structural and other factors hampered their ability to turn their recommendations into long-lasting improvement. This report carries out that study.
Common themes
In examining the four Reviews, the report identifies several common themes across the four Reviews, which lie behind the fact that they have not produced lasting improvements in access to justice. These include that:
- they were framed as court-centric reviews and therefore looked at how to improve access to the civil courts by reducing complexity in the civil courts’ practices, procedures and structures, and by reducing litigation cost and delay;
- they were predominately judge-led, with the support provided by a small advisory group drawn from additional judges, members of the legal profession and other professional court users;
- there was a general absence of involvement of lay court users;
- they were commissioned on the basis of anecdotal evidence while not being informed by an overarching, long-term strategy; and
- they are increasingly concluded in short time periods.
Implementation
The report also identifies problems with implementation as lying behind the fact that they have not produced enduring improvements in access to justice. Acceptance of the four Reviews’ recommendations varied. In some cases, their recommendations were adopted almost in the entirety. This was the case for the Woolf and Jackson Costs Reviews. For the Civil Justice Review 1988, there was substantial implementation, whereas very few of the Briggs Review’s recommendations were implemented. In many cases, recommendations made by one Review would not be implemented and would then be adopted, again, as recommendations by subsequent Reviews. Where recommendations, for instance, concerning the need for increased and improved provision of information technology (IT) were concerned, they were repeated by all Reviews as they were either not implemented, not implemented in full or implementation was less than effective.
Equally, where recommendations concerned specific reforms to civil court practice and procedure – e.g., the creation of a single procedural code for the civil courts or the introduction of active case management – they would either be viewed as, for instance, premature or unnecessary when first made, with their utility only becoming fully appreciated by the second time they were recommended. Additionally, some reform recommendations, such as those concerning improvements to the civil enforcement process, particularly those made by the Briggs Review, were viewed by Government as tending to be too difficult to implement and thus went, and continue to go, unimplemented.
Implementation was also, in many cases, adversely effected through separate reforms that were independent of a Review and its recommendations. The most obvious example of this was the creation of significant litigation over litigation funding that scarred the first decade of the Woolf Review’s recommendations’ implementation, which arose from reforms to legal aid and conditional fee agreements in 1999. Similar problems arose in the effective implementation of the Jackson Costs Review’s reforms, which was hampered by a reduction in access to justice caused by the significant reduction in legal aid availability after 2012 that was carried out independently of that Review and contrary to the assumptions on which its recommendations were made. Further problems also arise through failure on the part of, for instance, Government to properly implement recommendations made by the Reviews.
Four key deficits
The report, finally, identifies key reasons that undermined the ability of the four Reviews to effect lasting and significant reform. Those deficits do not relate to implementation of the Reviews’ recommendations, albeit where the Briggs Review is concerned very few of its recommendations were implemented. Their failure to improve access to justice stems from four deficits, which shaped the manner in which the Reviews were commissioned and carried out. Those deficits are:
- definitional – civil justice reform is informed by too narrow an understanding of ‘access to justice’, one that is court-centric and hence fails to address or engage with the truly significant access to justice deficit that is centred on unmet legal need that results a majority of individuals not even reaching the point where they can seek legal advice and assistance;
- constitutional – civil justice reform operates against a background understanding that misrepresents the civil justice system, and hence access to justice, as a consumer service rather than part of the constitutional fabric of society;
- institutional – reform is carried out on a piecemeal basis by task-and-finish reviews rather than by a single, permanent institution that is responsible for developing a long-term, coherent access to civil justice strategy and overseeing its implementation; and
- empirical – civil justice reform is not informed by a robust evidence-base, nor is implementation and continuing revision and improvement informed by such evidence.
These deficits meant that from their inception the four Reviews could not be in a proper position to effect lasting reform.
Overcoming the deficits
To overcome the four deficits and provide a sound basis for successful, transformative, future reform, eight recommendations are made. The essence of those recommendations is that effective civil justice reform requires new, permanent and sustainably funded institutional capacity operating within a constitutional framework that understands access to justice to as a public good and means more than effective access to the civil courts as providers of consumer services.
Specifically, the recommendations focus on effective reform requiring the creation and long-term funding of a permanent Civil Justice Reform Institute. This should be responsible for both developing reform recommendations and implementation. It should be supported by an independent Access to Justice Institute. Together, they would provide continuity, expertise and a stakeholder, i.e., user-focus for civil justice reform. Together they would also facilitate the development and delivery of reform, including the economic case for it, that is evidence-based, tested, and delivered as part of an overarching and coherent strategy for improving access to justice, which, it is recommended, should be understood in a broad sense to include: access to preventative justice, i.e., access to advice and information that helps individuals and businesses order their affairs according to the law and in ways that minimise the potential for legal disputes to arise; access to consensual justice, i.e., access to consensual resolution of legal disputes, and thereafter access to those processes; and access to adjudicative justice before the civil courts, i.e., access to legal advice, representation, the civil courts, judgments and enforcement.
If the eight recommendations were to be implemented, the commitment to reform and to improve access to civil justice evidenced by the four Reviews, those who commissioned them, carried them out and, to varying extents, implemented them, can be channelled to greater benefit to the public than has been the case over the last forty years.
Summary of recommendations
Recommendation one – A broad definition of civil justice and access to it
- Future reviews and reforms of the civil justice system should be predicated on an understanding that access to justice does not mean access to adjudicative justice, i.e., effective access to the civil courts, judgments and, where necessary, enforcement. They should therefore not be court-centric.
- Access to justice should in future be understood by reform to have a broader meaning, which includes but is not limited to adjudicative justice. A broader understanding of access to justice should include consideration of how to tackle unmet legal need caused by, for instance: poverty; social isolation, alienation or marginalisation; medical, including mental health, issues; neuro-divergence; vulnerability; low levels of literacy; education; geography; digital poverty; and absence of trust in the civil justice system. It should include access to measures that help individuals and businesses order their affairs within the law, minimise the prospect that disputes may arise (preventative justice) and promote early, consensual resolution where disputes do arise (consensual justice).
Recommendation two – Explicitly recommit to the idea that the civil justice system is a public good
- Society and particularly Government should explicitly reject the idea that the civil justice system (the means through which access to justice is delivered), and access to it, forms part of the service sector of the economy.
- If future reform is to be carried out effectively, there needs to be a recommitment by Government, set out in and supported by statute, that there is a public right of access to justice and that this is secured through the civil justice system. This should entail an express commitment to the idea that the civil justice system forms part of the state, which is itself a public good that promotes the rule of law by: enabling individuals and businesses to order their affairs within the law; helping them to prevent legal disputes arising; helping them settle disputes consensually; and, where necessary, enabling them to have their legal rights vindicated by a court judgment and enforced.
- This recommendation thus requires the recommitment to the idea that there is a public right of access to justice, which is a right to live under the protection of the rule of law and the social, political and economic framework that it provides.
Recommendation three – Create a Civil Justice Reform Institute
- A permanent non-judicial reform body (a Civil Justice Reform Institute) should be established by statute, the remit of which should be oversight of the civil justice system as a whole. It should specifically be responsible for promoting and developing future reform aimed at securing access to justice understood in the broad sense set out in recommendation one. It should promote reform consistently with an overarching, coherent and holistic strategy for the reform of the civil justice system as a whole, which it should develop. It should be accountable to the Government and the judiciary.
- The Civil Justice Reform Institute should have an independent chair. Its membership should be diverse and drawn widely from all stakeholders in the civil justice system. Appointment should be on merit, based on expertise, and effected through the public appointments process.
Recommendation four – Introduce accountable implementation
- Implementation of future reform should be the responsibility of a single, identifiable body, which, if it is to work most effectively, should be a standing sub-committee of the Civil Justice Reform Institute and accountable to it and, through it, to Government. It should be required to provide them with regular reports on the progress of reform and should make such reports public to further public scrutiny and accountability. It should be constituted by stakeholders from across the civil justice system.
Recommendation five – Secure a sound evidence-base – An Access to Civil Justice Institute
- All future reform should be evidence-based. Evidence should be relied on by the Civil Justice Reform Institute to determine whether and where reform is necessary and the causes of problems that stand in need of reform. It should be relied on in the development of reform recommendations, used to test reform proposals and used to monitor their implementation.
- To facilitate the move to properly evidence-based reform, a permanent research institute – an Access to Civil Justice Institute – should be established. It should have the means to obtain and analyse data and other evidence from across the whole of the civil justice system.
Recommendation six – Engage more fully with comparative approaches
- There should be an increased focus on comparative study of civil justice systems from across the world, and particularly their approaches to reform. Future reform reviews should take particular care to learn from both successful and failed reform in other jurisdictions to help maximise the prospect that domestic reforms will succeed.
Recommendation seven – Successful reform requires piloting and testing
- All future reform should be subject, where necessary, to mandatory piloting and testing to determine the extent to which it is likely to achieve its objectives and whether, and if so how, it may have unforeseen adverse consequences.
Recommendation eight – Successful reform requires sustainable funding
- To facilitate effective future reform – and the institutional capacity that underpins it and its implementation – there should be a statutory duty on Government to provide the reform process, including the Civil Justice Reform Institute and Access to Civil Justice institute, with sustainable funding. It is not acceptable to expect reform committees or reviews to operate on the basis of small, temporary secretariats with the pro bono support of private enterprise or charities.
