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19 December 2023

If I were to write a blog post detailing the day in the life of a junior litigation solicitor, one of the tasks that would likely feature is a call to the Court.  Unfortunately, however, it would not be out of place to also comment in said blog that when doing so you can expect to be placed on hold for a lengthy duration (usually between 30 minutes to 2 hours plus) with no guarantee that you will actually be able to speak to a court officer before being unexpectedly cut off and having to dial again - that is unless your resolve hasn’t been defeated by the continuous crackly hold music playing on an unrelenting loop!

Recently, I was nearing the hour hold mark – attempting to call the county court with a rather urgent query, when the call was connected not to a court adviser as one would expect – but to another court user(!) After clearing up the initial confusion and confirming that, 'no sir, unfortunately, I cannot take your claim number or assist', we wished each other luck on our further attempts. 

So, after that comedic sketch of a phone call, two further hours on hold and finally, a thirty second call with a court adviser, I was able to get the answer I needed.  Believe it or not, this is not the worst-case scenario; there are some court centres where it would be considered miraculous if you were able to get through at all!

While the above is just the woes of one individual's experience, it speaks to a much larger issue with the court system, the ripples of which are felt widely throughout the legal profession and beyond. I should add that some court centres are very helpful (especially the ones where you can communicate with the staff directly via email), but to some extent, it is very much a post code lottery as to the type of experience you will get when contacting the courts. 

On 7 December 2023 the Ministry of Justice published its quarterly civil justice statistics (July to September 2023) which confirms that the volume of claims received by the courts continues to increase and remains elevated at the highest levels since the pandemic; currently at 80% above of the pre-covid baseline.

The average time between the issue of a claim and reaching trial for small claims has risen by almost a month - 3.5 weeks.  This is significant compared to the comparatively small increase of 0.5 for fast/multi track claims.

HMCTS reports to have introduced various mechanisms by which to increase the performance of the court system.  These include the digitalisation of court procedures, recruiting more staff members and promoting an increased use of mediation.  While the implementation of virtual hearings has certainty helped save solicitors time and costs (with reduced travel time being a bonus for both professionals and clients) it appears to have done little to reduce the mounting backlog of cases.

In practice it is often in the early stages of contemplating litigation, when clients are faced with the reality of what is now a very lengthy road ahead, that most clients undertake a cost benefit analysis and consider possible alternatives such as mediation and alternative dispute resolution.  Given that the most recent statistics show that the number of claims is at its highest level since the pandemic, but that this has not translated into an increased number of claims reaching trial, it would suggest that the delays experienced by court users may be pushing more individuals towards settlement.    

While mediation certainly has many benefits (reducing time, costs and stress for parties if successful) it is not a format that works for everyone – especially those cases with a binary outcome or where one party is entrenched in their position and there are many reasons as to why mediation is not always appropriate.  However, in light of the above figures and the seemingly ever-growing court case load, it raises the question as to whether the Ministry of Justice will push further for mandatory mediation to alleviate the current pressures faced by the court system – it is certainly a "watch this space" topic.  

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