Legal commentary is often about the grim glamour of the criminal law, or about the excitements of constitutional and international law (although for constitutional or international law to be exciting is usually not a good sign). But this article is about a systemic legal problem which has everyday significance: the crisis in our county courts.
County courts are the mundane workhorses of the legal system in England and Wales. They deal with civil claims such as actions for debt and claims for damages, as well as family and housing law matters. There are few lawyers present, for there are normally no costs to be awarded, which means they are not available to prepare the evidence nor to set out a case.
Instead, the grunt work is done by district judges, the quiet heroes of the civil legal system (with some exceptions). The judges are assisted by underfunded, demoralised and hard-pressed court staff.
The IT in the county courts is rudimentary—if it is working at all. Many of the courts are housed in what seem (and may well be) former offices of the Department of Health and Social Security. Court files exist in paper form, and are shifted around the building in a manner evocative of a Heath Robinson cartoon or Wallace and Gromit’s The Wrong Trousers.
It has long been a marvel that these courts work at all—indeed, they often seem to keep going by the mere goodwill and dedication of those working in the building. But even this is no longer enough: parts of the county court system are now not working.
The practical consequences of this are stark. For example, if you are a business and are owed a substantial amount of money—say just under £100,000—and the debtor disputes it, you may as well write it off rather than attempt to recover it. This state of affairs is disastrous for small and medium-sized businesses, for which such an outstanding amount would be enough to mean the business going under.
This desperate state of affairs has been picked up on by Robert Neill, the lawyer who chairs the justice select committee in the House of Commons. At a recent liaison session of committee chairs with the prime minister, Neill devoted half his questions to the topic:
“My final point is on a separate aspect: the importance of a functioning civil justice system to businesses. Were you aware that, at the moment, a small business that may have a £95,000 money claim that is very important to its cash flow can be waiting for up to 70-plus weeks for that case to be resolved if it goes to trial? That is 17 weeks more than it was about four or five years ago. That level of delay cannot be good for the British economy, can it?”
Then:
“I put it to you that that is partly because the county courts, which handle 95 per cent of civil work, are operating an entirely paper-based system, which causes massive delays. Would you perhaps take away the proposition that considerable savings and economic benefit will be achieved with some capital investment in improving the technology and support systems in the civil courts?”
The prime minister, of course, had no idea. Indeed, few politicians—or pundits—would. It is not a shiny or interesting topic where they can have outraged remarks quoted in newspaper articles.
The official figures of the Ministry of Justice support Neill’s concern. The most recent report states:
“The mean time taken for small claims and multi/fast track claims to go to trial was 55.8 weeks and 85.7 weeks, 4.3 and 6.9 weeks longer than the same period in 2022 respectively. Compared to 2019, these measures are 18.7 weeks longer for small claims and 24.7 weeks longer for multi/fast track claims.”
And those are the mean times: so one can imagine how long some of the case are taking. And for a person with a negligence claim or a small business wanting simply to be paid, this means that a case can take up to two years or even more to be resolved.
Neill’s justice select committee has announced it is going to look into the problems with the county courts. Some of the evidence already provided to the committee is unpleasant but unsurprising.
The Bar Council reported that many “courts are in a very poor state of repair and without functional basic facilities. Many are in buildings which are highly inaccessible to those with disabilities or poor mobility […] the lack of copying or scanning services can make the County Court extremely challenging as an advocate […] Many courts have no drinking water fountain or tap available to attendees. Many do not provide water even in the court rooms, since Covid.”
“The physical condition of the court estate is having an impact on the work of the courts across England and Wales. Repair issues often force courts to close, the buildings themselves can be unpleasant work environments, while some courts are difficult for disabled users to access. […] This is not the main cause of the significant backlogs we see across the estate, but it is a contributing factor. The backlogs themselves are down to extensive cuts to the justice system including to courts, sitting days, legal aid and to administrative staff in recent years.”
And the Civil Court Users Association:
“Part of the problem is that court users struggle to communicate with the courts, with telephone calls and other correspondence regularly going unanswered. Even if it is possible to make contact, court staff often have little or no understanding and are effectively unable to assist. Delays are particularly bad in London and the South East, but there are difficulties everywhere. […] The courts are also often taking so long to draft and send orders that the deadlines stated within them have already expired before they are received by the parties. This is leading to cases being struck out unnecessarily, which is only adding to backlogs and delays whilst Applications are made for relief from sanctions.”
And so on, and so on.
The effect of the county courts not being fit for purpose is that there are what can be called civil justice deserts, as there are deserts with NHS dentistry and with other basic public services. Parliament may well pass laws and create rights and obligations, but these are essentially fictions across much of England and Wales. The rights and obligations may exist on paper, but they cannot usefully be enforced by anyone.
A complex liberal society with a market economy requires enforceable rights and obligations between private persons. And even if those rights and obligations are rarely enforced in any formal manner, there needs to be confidence that they are capable of enforcement, if required. Without that confidence, debts will go unpaid, damages will not be compensated, and wrongs cannot be remedied.
Now, at the local level, we are getting to the stage where the civil justice system may as well not exist, for all the practical difference it makes. The effects of this state failure will not be immediately obvious, as there will be lag before experience feeds into expectations. Soon, however, individuals and businesses will realise that contracts and duties of care are not practically enforceable, and various behaviours will be adjusted accordingly.
