The last two years have been revolutionary for the courts and litigators. The transition from traditional ways of working (from cupboards full of paper to court hearings in person) to embracing digital ways of working (wholly electronic files and hearings via Teams and CVP) has been long-awaited and has been accelerated by the need to work from home in the face of the COVID-19 pandemic.
One of the most significant changes has been the way in which documents are transmitted. Traditionally, out of convenience as much as anything else, parties would print their pleadings, post them to each other and to the court; likewise, court orders have been delivered to the parties by post.
Whilst exchanging correspondence and serving documents by email was on the increase prior to the pandemic, the last two years have led to a substantial move away from any posted correspondence. Large documents are no longer printed and sent in lever arch files (which often break before arrival!); they are sent by online file-sharing platforms. The move to an increasingly digital approach to litigation is welcome – data can be transmitted more quickly, more securely, and received in a format that can be more readily machine-read and annotated.
The Damages Claims Portal
Into this brave new world, HMCTS has introduced a new way of serving and responding to claims –the Damages Claims Portal ("DCP"). The system will feel familiar to practitioners who have used the County Court Bulk Claims process.
The DCP is available for all damages claims which would ordinarily follow the "traditional" Part 7 claims process, provided that:
- neither party is a protected party (aside from children under 18 represented by a Litigation Friend),
- the claimant is not subject to a Civil Restraint Order or similar, and
- the claim is not brought under the Consumer Credit Act 1974.
The concept is a welcome one. The move to a fully digitised claims process is undoubtedly beneficial for access to justice, swiftness of dispute resolution, and saving costs and court resources. Claimants can issue and serve their claims online, defendants can respond through the online platform, and both parties can then provide the details necessary for a judge to issue directions. The long-term direction of travel will, no doubt, be for directions to be issued and made available to the parties online, speeding up and affording greater access to justice.
The Pilot and its challenges
The DCP is presently operating as a Pilot under CPR PD 51ZB. Claimants have, for some time now, been able to issue and serve their claims online, and defendants have had the facility to respond electronically. However, uptake has been slow, particularly from the defendant community.
There are a number of reasons for this low take-up. These include:
- Limited publicity regarding the DCP – many practitioners and professional litigants have little or no knowledge of the Pilot.
- There is no integration yet available between the online portal and firms' case management systems.
- There is no "sandbox" environment for law firms to test the system and train staff.
- Defendant law firms are required to provide their prior consent to accepting service in the DCP – an approach which is out of kilter with the way instructions are often received in the personal injury field, e.g., when defendant solicitors receive Claim Forms without first being instructed by insurer clients.
- In that scenario, where insurers have nominated solicitors but have not issued formal instructions at that stage, there is no way to identify the litigants or type of case without accepting the claim in the DCP. Furthermore, there is no requirement for claimants to provide details of the insurer - inevitably resulting in additional correspondence to obtain those details and delay.
The DCP presents other challenges to practitioners on both the claimant and defendant sides of the aisle. Claimants face having their claims automatically struck out if they fail to file their virtual directions questionnaire in time, whereas defendants do not enjoy the indulgence introduced in recent amendments to CPR 12.3 - claimants may seek default judgment as soon as the defendant has failed to acknowledge service of the claim or file a defence, rather than defendants having more time to respond to the claim in the period before judgment is entered. Both are likely to lead to an increase in the need for applications to reinstate claims and to set aside default judgment respectively. It should also be noted that the Pilot provides for a cut-off time of 4pm, notwithstanding the change to 4.30pm introduced to CPR Part 6 in 2008.
The Way Forward
DWF supports the move to greater digitalisation of the claims journey. Access to and swift administration of justice are likely to be assisted by the move to electronic service. The electronic transmission of directions and other orders will be very welcome.
However, such changes require careful planning within law firms, as well as at the courts. The systems need to be robust, integrated, and accessible. Practitioners need to be able to test the system itself and develop their own processes. There is a need to train staff and educate clients, and time is required to develop IT integration between the DCP and case management systems.
Alarmingly, the recently released Practice Direction Update (142nd) will, from 4 April 2022, compel legally represented claimants in the County Court to use DCP for claims which come within the scope of PD 51ZB.
Also, this week, HMCTS has indicated that defendants will be compelled to use the DCP "shortly". This will have far-reaching consequences for law firms and their clients (particularly professional litigants). This is a significant change to the way claims are commenced and responded to, and should not be pushed through with undue haste.
Thankfully, at present, if the defendant does not consent to using the DCP, the claim is served in the "traditional" way; however, that is likely to change, and steps will need to be taken by law firms and their clients to get ready for compulsion.
In our view, making the DCP in its present form mandatory, either for claimant or defendant practitioners is premature. Further time is required for testing, feedback, and development. Too few claims have progressed through the DCP to the directions stage to have confidence in the system. There remain a number of changes to the DCP that DWF has proposed, which would not only improve the process itself, but offer opportunities to make the electronic process more effective than the "traditional" approach.
We are continuing our own pilot of the DCP, providing feedback to HMCTS, and support and insight to our staff and clients.
In terms of practical guidance, in light of the requirement for defendants to consent to the use of the DCP, this may change how solicitors are nominated and may mean closer discussions between clients and their solicitors prior to the issue of proceedings to enable consent to be given.
If you have any queries about the DCP Pilot, please do not hesitate to contact Jonathan Head.
