Recent research from Thompson Reuters – using court data from the post-pandemic period – has shown a huge increase in court delays, with civil claims now taking an average of 18 months to be heard, up six weeks from the same period last year.
It is no secret that the courts have faced severe funding pressures which, when set against a rise in the amount of claims coming through their doors (which HM Courts Service say are at their highest level since the start of the pandemic), have made these kinds of delays inevitable.
These delays cause huge uncertainty for all involved, and add to the rising costs of pursuing proceedings through the courts.
Impact on property claims
The government white paper on a “fairer private rented sector” (which resulted in the renters reform bill, recently put before Parliament) cited court delays as a key reason for reforming the process for possession proceedings for residential leases.
Landlords of commercial properties are also feeling the effects of these delays, with the High Court refusing to take listings for expedited lease renewal proceedings save in exceptional cases, leaving them at the mercy of lengthy county court delays.
The responses from property practitioners to the PLA’s recent survey on potential reform of the Landlord and Tenant Act 1954 listed court delays as one of the key frustrations they, and their clients, face.
For example, a landlord wanting to redevelop their property could be prevented from getting possession for two years or more due to the lengthy delays, and sometimes convoluted process when exercising their right to oppose the renewal of a lease under the Landlord and Tenant Act 1954. Even where landlord and tenant agree about the grant of a new lease, any dispute about the terms of that lease could take years to resolve through the courts, creating uncertainty and additional cost for both parties.
The Law Commission has announced a consultation on reform to the 1954 Act and may use this as an opportunity to consider whether the backlogged courts remain the right forum for these kinds of claims. They may consider moving the process away from the courts and towards the first-tier tribunal (although this risks transferring the problem), or even more radically towards a new arbitration system – akin to the Covid rent arrears scheme.
What can be done?
One way to streamline the court process would be to move towards greater digitisation. The HMCTS Reform programme has already launched a “digital services” evaluation, and acknowledged the need for change. While this may bring greater efficiencies in the future, it doesn’t help ease the current delays.
It had also been hoped that the move towards more remote hearings following Covid lockdowns could lead to greater efficiencies, and enable the courts to get through a greater number of cases each week. However, while the Thompson Reuters research points to 80% of courts in England and Wales conducting some hearings remotely, this does not seem to have resulted in a corresponding reduction in wait times.
If these delays do not improve, landlords and tenants may consider including alternative dispute resolution clauses in leases and other agreements, agreeing to settle their differences through expert determination or arbitration, in a bid to avoid these lengthy delays.
The courts have always encouraged the parties to consider resolving dispute outside the court through alternative dispute resolution, and particularly mediation. The courts may start to put more pressure on the parties to resolve disputes themselves to take more pressure off the court system. The government has recently announced its intention to roll out compulsory mediation for small claims and this could be extended further should it prove successful.
However, despite best intentions, in some cases, the parties cannot move on without a decision from the court. Unless the pressure on the courts eases, those needing their help will be left waiting.
Paul Tonkin is chair of the Property Litigation Association law reform committee and a partner at Hogan Lovells
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Court backlogs: why are we waiting?
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Paul Tonkin
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Recent research from Thompson Reuters – using court data from the post-pandemic period – has shown a huge increase in court delays, with civil claims now taking an average of 18 months to be heard, up six weeks from the same period last year.
It is no secret that the courts have faced severe funding pressures which, when set against a rise in the amount of claims coming through their doors (which HM Courts Service say are at their highest level since the start of the pandemic), have made these kinds of delays inevitable.
These delays cause huge uncertainty for all involved, and add to the rising costs of pursuing proceedings through the courts.
Impact on property claims
The government white paper on a “fairer private rented sector” (which resulted in the renters reform bill, recently put before Parliament) cited court delays as a key reason for reforming the process for possession proceedings for residential leases.
Landlords of commercial properties are also feeling the effects of these delays, with the High Court refusing to take listings for expedited lease renewal proceedings save in exceptional cases, leaving them at the mercy of lengthy county court delays.
The responses from property practitioners to the PLA’s recent survey on potential reform of the Landlord and Tenant Act 1954 listed court delays as one of the key frustrations they, and their clients, face.
For example, a landlord wanting to redevelop their property could be prevented from getting possession for two years or more due to the lengthy delays, and sometimes convoluted process when exercising their right to oppose the renewal of a lease under the Landlord and Tenant Act 1954. Even where landlord and tenant agree about the grant of a new lease, any dispute about the terms of that lease could take years to resolve through the courts, creating uncertainty and additional cost for both parties.
The Law Commission has announced a consultation on reform to the 1954 Act and may use this as an opportunity to consider whether the backlogged courts remain the right forum for these kinds of claims. They may consider moving the process away from the courts and towards the first-tier tribunal (although this risks transferring the problem), or even more radically towards a new arbitration system – akin to the Covid rent arrears scheme.
What can be done?
One way to streamline the court process would be to move towards greater digitisation. The HMCTS Reform programme has already launched a “digital services” evaluation, and acknowledged the need for change. While this may bring greater efficiencies in the future, it doesn’t help ease the current delays.
It had also been hoped that the move towards more remote hearings following Covid lockdowns could lead to greater efficiencies, and enable the courts to get through a greater number of cases each week. However, while the Thompson Reuters research points to 80% of courts in England and Wales conducting some hearings remotely, this does not seem to have resulted in a corresponding reduction in wait times.
If these delays do not improve, landlords and tenants may consider including alternative dispute resolution clauses in leases and other agreements, agreeing to settle their differences through expert determination or arbitration, in a bid to avoid these lengthy delays.
The courts have always encouraged the parties to consider resolving dispute outside the court through alternative dispute resolution, and particularly mediation. The courts may start to put more pressure on the parties to resolve disputes themselves to take more pressure off the court system. The government has recently announced its intention to roll out compulsory mediation for small claims and this could be extended further should it prove successful.
However, despite best intentions, in some cases, the parties cannot move on without a decision from the court. Unless the pressure on the courts eases, those needing their help will be left waiting.
Paul Tonkin is chair of the Property Litigation Association law reform committee and a partner at Hogan Lovells
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