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Privatising the Courts - things can only get better?
“Err… sorry but, we have your skeleton argument, but the Judge says he doesn’t have any other documents from the Defendant. It seems half the court file has been lost”
This was the lament from a very long-suffering court usher to the author just yesterday morning ahead of a Fast Track trial. It is not an unfamiliar complaint in most barristers’ experiences. Indeed, it is so familiar that many counsel take an entire copy of a trial bundle to court, in the expectation that something has gone awry with the papers. Even the district and circuit benches appear resigned to what are at times, ludicrous, failures in the administration of the court. Suffice to say, no castigation was meted out by the trial judge, who made do with a bodged-together trial bundle supplied by counsel on the day of the hearing.

It is not just the (apparently) endemic problem with court documents going missing, there are other examples of maladministration of the County Courts which are continuing sources of great annoyance, delay and – ultimately – expense to litigants. The late re-listing of trials is particularly frustrating. Most counsel have tales of how this has lost them countless working days. My opponent in a trial in a somewhat far-flung West County court, had flown down the night before and was enjoying an early beer in his hotel, only for him to be told – at five to six – that the matter was adjourned due to judicial non-availability (I am glad I planned to take the sleeper and was still in London!). This sort of thing was wholly available. After investigations by our respective clerks, it was known that the particular judge was not going to be available from at least the day before!

Whether the system is badly and inefficiently run due to incompetence or maladministration, or (as I have often been told after waiting on behalf of my client for two hours for a three line order to be drawn up) it is due to (what is usually non-specifically referred to as) ‘understaffing’ would appear to be a matter for debate. It certainly appears true that large numbers of court staff have been cut in the last few years. Though many of the more heinous failures in the system would not appear to necessarily be causally-related to this.
Up until now, nobody has questioned whether anything could be done, despite there being likely widespread support that something should be done. There has been a sense of resignation among judges, court staff and court users alike.
Well, what about the privatisation of some courts as suggested by Chris Graying, the Justice Secretary?
Such a move would establish the courts service as a commercial enterprise, with court buildings and staff (but not judges or magistrates) transferred to the private sector. An idea is mooted that the Court’s independence could be protected by a Royal Charter. The courts would be in-part funded by charging wealthier litigants higher court fees. It is predicted that the move could save the Ministry of Justice £1 billion a year.
Like with many of the reforms of the Government, things are looking as though they are to move on apace. Mr Graying will receive some proposed options for reforms in the next weeks and is thereafter expected to set a timetable for implementation, with some commentators expecting things to potentially happen this Autumn.
A problem for Mr Grayling is that (along with almost everything he does) the legal profession oppose any such moves, with the Chairman of the Bar and various heavyweight lawyer members of the House of Lords, protesting openly.
However is there anything fundamentally objectionable in principle with private companies administrating an arm of the state?
Assuming that there is not (perhaps a big assumption) – are things likely to be any better? Will those witness statements actually reach the court file? This must be far from certain, given the privatisation of court translation services, which has been widely reported as having been a fiasco. But then again, it would be hard for things in some courts to get very much worse!


Like with many things at this time of change in the legal world, sadly the conclusion is “watch this space”. But expect change to be rapid if it comes!


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