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The Justice Minister for Northern Ireland has launched a public consultation on increasing the general civil jurisdiction of the county courts in Northern Ireland. This will impact a range of claims with personal injury, defamation and clinical negligence claims included in the remit of the consultation. The consultation seeks views on the financial boundaries that govern which tier of court hears civil claims. It also seeks views on increasing the jurisdiction of the small claims court to £5,000 and asks for views on a number of specific issues, including:
- Increasing the jurisdiction for defamation cases to £10,000.
- Whether clinical negligence cases should be reserved as a strictly High Court action or retain the current upper limit of £30,000.
- Whether county court judges should have a statutory power to remove cases from the county courts to the High Court.
The consultation follows previous reviews of civil justice in Northern Ireland - most recently the Review of Civil and Family Justice in Northern Ireland, led by Lord Justice Gillen. This task was ambitious in both its breadth and depth, resulting in over 400 recommendations. Included in the Review Group’s Report on Civil Justice (the Report), was a major focus on the digitalisation of the courts, improving access to justice, and the reform of County Court jurisdiction. In particular, one recommendation was to increase the jurisdiction of the County Court from £30,000 to £75,000, but following responses from the Bar Council and others, this was reduced to £60,000.
A Shadow Civil Justice Council chaired by Lord Justice Gillen was set up in 2017, principally to facilitate the implementation of the recommendations in the Report. Attempts have been made to progress a number of recommendations, and in light of the COVID-19 pandemic and lockdown, it appears these efforts have been amplified.
Should the current proposals be adopted, the impact on civil claims in Northern Ireland cannot be underestimated.
The current position
Presently, the county courts in Northern Ireland have a jurisdictional financial limit of £30,000. Claims valued over £30,000 fall within the jurisdiction of the High Court, which also generally includes clinical negligence and defamation cases.
It is worth noting that there are important procedural differences between these courts. In proceedings for both county and high courts, the losing party usually pays their own legal costs as well as those of their opponent. While the award of costs is at the discretion of the judge, there is less scope for this in the county courts as a result of the scale or fixed costs regime.
The consultation
The consultation goes further than the recommendations provided in the Report, with the Department of Justice putting forward two options:
- Option 1- increasing the county court jurisdiction to £60,000, with an increase in the jurisdiction of district judges to £20,000.
- Option 2- increasing the county court jurisdiction to £100,000, with an increase in the jurisdiction of district judges to £35,000.
The tone of the consultation suggests that the Department of Justice considers option 2 may be too ambitious as an initial step.
The consultation does not specifically refer to commercial cases and as such, the implication is there would be no exception for these cases, although claimants may apply to ‘remove’ some cases due to complexity.
Impact on the claims landscape
If implemented, the reforms under discussion will result in the movement of a significant portion of cases which would have been allocated to the High Court into the County Court. The risk, if not properly planned and resourced, is that the county courts could end up overburdened with the volume of cases, thereby slowing down proceedings and ultimately impacting access to justice.
As a first point of order, the consultation should arguably have included creating a suite of pre-action protocols in the County Court and giving them some ‘teeth’.
The real risk to insurers is that claimant solicitors will continue to withhold vital information prior to issuing court proceedings.
Notwithstanding the potential of delay in county court cases, the proposals could bring benefits to insurers and other compensators. By way of contrast to high court cases, claimants in the county courts are required to specify from the outset the amount claimed. This could provide compensators with greater certainty and potentially lower costs; assisting with setting more accurate reserves and bringing speedier resolution to claims.
However, the transfer of a significant volume of cases into the County Court may, ironically, impact the very efficiency which it is hoped to achieve. Clearly, the higher the financial limit of the County Court, the greater the number of cases will fall into that jurisdiction.
Insurers and claimants alike will agree that more complex cases are often better reserved to the environment of the High Court, with the benefit of generally more experienced judges to hear these cases, with more time to consider the complex issues in dispute.
Nonetheless, it is important to remember that the monetary value of a case does not always reflect its complexity. Clinical negligence cases are often, by their nature, more complex. This observation is reflected in the consultations request for views on whether clinical negligence cases should be reserved for the High Court.
Comment
It is clear that the Department of Justice has set a path to reviewing and reforming the civil justice landscape in Northern Ireland. With that objective in mind, the consultation seeks views on potential changes to the County Court which could have wide ramifications for insurers and compensators.
The consultation will run for 12 weeks until 30 April 2021. Kennedys will be responding to the consultation to represent our clients’ interests.
United Kingdom