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28/07/2016

Of online courts and unified enforcement

Lord Justice Briggs’ final Review of the Civil Court Structure has been published. The main part of the report is of course the proposals for the new ‘online court’ – a costs free and litigant in person form of tribunal, heavily aimed at forms of ADR. The news for housing is that there is now no news. The interim report had proposed putting mandatory possession claims and potentially disrepair claims into the online court. Following responses by HLPA, and a very pleasant and civilised meeting, Briggs LJ acknowledged that possession claims of any sort were not suitable for the Online Court (para 6.95) and agreed that disrepair claims should not be automatically in the online court, but that claimants in damages only claims, below the £25,000 threshold, could elect to use the Online Court (paras 6.101 and 6.102).

Given that the proposal is for ‘guided’ online triage at stage 1 of the online court, the sheer complexity of coming up with adequate automated triage for housing cases (see for example my s.21 flowchart)  means that housing’s exclusion is a good thing, as it is hard to see that level of complexity being adequately funded for translation into a ‘triage system’.

Elsewhere in Briggs LJ’s report, there are some interesting proposals on enforcement of judgments and orders. Enforcement is proposed to be ‘unified’ with, in effect an ‘enforcement court’. However, this does not mean that all or any of the current means of enforcement would be available – with a particular issues being the difference between county court and High Court enforcement methods.

The proposal (at 10.20) is that the County Court should be the court for all enforcement – of High Court, Online Court and County Court judgments – save that there needs to be a ‘permeable membrane’ with the High Court:

so that disputes about enforcement which really do call for High Court judicial expertise can readily be sent there for determination. These are likely to include disputes about cross-border enforcement. It may well be that enforcement of adjudication awards in the construction industry should only be enforced by the TCC.

So, High Court writs would be out for possession cases, something that does not yet appear to have occurred to some HCEO firms, who really haven’t understood the import of these preceding paragraphs:

10.14.  There is substance in the fear of some consultees that unification without more would break down existing barriers which are perceived to protect vulnerable classes of judgment debtor from certain types of enforcement, such as by HCEOs, which are widely perceived to give rise to risks of unduly harsh treatment, even though the extent of these risks is vigorously challenged by those consultees representing, and making widespread use of, HCEOs and EAs. It is also true that several types of claims against classes of vulnerable debtors can only be made in the County Court, either because the value of the claim is below the High Court threshold, or because the County Court has exclusive jurisdiction (as it does in relation to many types of claim for possession of residential property).

10.15.  But these barriers are, at present, a very imperfect form of protection. Any County Court judgment over £600 can be transferred to the High Court for enforcement. The same is true for orders of possession of residential property, and private landlords regularly seek and obtain orders for transfer of orders for possession to the High Court, precisely because the large delays occasioned by using the under-performing County Court bailiff service means that landlords fear serious loss of rental income (or use) of their properties following the obtaining of judgment.

Because at 10.20.2 we find:

The more generalist County Court is already widely established across the country, in sharp contrast with the High Court, and therefore well-placed for the supervision of types of enforcement, such as possession of land and execution over goods, which take place at de ned geographical locations.

If Briggs LJ’s proposals are taken forward (and it would mean substantial procedural and indeed legislative work), it may well mean the end of High Court writs for possession following county court possession orders. There have already been plenty of problems with those. Of course, the ‘unified’ enforcement court would have to have properly funded and effective operations to avoid the justified complaints of delays.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

8 Comments

  1. David Carter

    Morning Giles,

    Not quite sure why you’re ‘bewildered’ in your tweet and state that we have not understood what is covered in the report. My article, which you kindly link to, makes no mention of whether or not HCEOs will continue to enforce possession orders.

    What is clear is his request for a ‘bespoke review’, something that clearly both you and I will cover in detail if it ever happens.

    Have a good weekend, David

    Reply
    • Giles Peaker

      Hi David – Your article made no mention at all of the the proposal for all enforcement to be in the county court – save for the most complicated – and also, it said ‘we welcome a move towards giving creditors a choice of judgment enforcement for all types and size of debt.’, which is not what appears to be being proposed. Hence the appearance of bewilderment. But yes, I agree, clearly a long way to go on reforms.

      Reply
  2. S

    I am probably being stupid (and haven’t read the whole thing cover to cover) but what about a damages only unlawful eviction claim? Is this excluded by some other means?

    Reply
    • Giles Peaker

      Not mentioned at all. But currently automatically fast track. So likely excluded.

      Reply
  3. Romain

    Considering that the Accelerated Possession Procedure exists and is aimed at getting a decision without a hearing, one has to wonder why that would be suitable for being conducted fully online.

    Reply
    • Giles Peaker

      Being dealt with online – which of course they already partly are under the accelerated procedure – is not necessarily the same to the proposed ‘Online Court’ procedure, which is effectively a whole new court procedure.

      Reply
    • Romain

      I admit I am not clear on this “online court” concept, and the point of creating yet another procedure.

      Reply
      • Giles Peaker

        Would be for all money only claims under £25,000. Would involve online diagnostics of ‘type of claim’, and early encouragement for mediation/ADR. All done on line – probably even trial – if got that far – by video. No legal costs other than perhaps initial advice recoverable, by either side. Aimed at litigants in person.

        Reply

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