Consulting on the future: proposals from the lord Chancellor's department

A flurry of consultation papers has appeared from the Lord Chancellor's department (LCD) over the past two months. There have been papers on multi-party actions, clinical negligence and, most recently, proposed new procedures for specialist jurisdictions. This latest paper deals with High Court procedure and, in particular, whether the existing divisions should be altered.

Surprisingly, in view of the radical nature of Lord Woolf's earlier papers, this one proposes the continuation of the practice of assigning all cases to a specialist list. It also proposes that the Chancery Division should be retained, as should the Official Referees Court.

However, the consultation paper does not address the issue of whether more radical change is necessary in the High Court. For example, the Chancery Division carries out a range of work, including professional negligence actions, and cases involving intellectual property, mortgages, trusts, land, and companies. A considerable part of this relates to commercial work. Can there be any justification for retaining the Chancery Division as a separate division when a large amount of its work overlaps areas dealt with in the Commercial Court?

There is also the anomaly that the Chancery Division deals with Inland Revenue taxation matters whereas VAT is dealt with in the Queen's Bench Division.

A similar question arises as to business in the Official Referees Court, some of which overlaps with other divisions, such as professional negligence actions and computer litigation. This also might be the time to upgrade the status of the judges in the Official Referees Court.

These issues are not debated in the consultation paper. Its concerns are largely confined to procedural matters. It proposes that all litigation should be commenced by procedures called 'the new writ' and the 'new originating summons'. Other procedures such as motions and petitions should be abolished. But is it necessary to retain the originating summons procedure for actions in which there is no factual dispute?

Surely this distinction can be dealt with by the way in which the action proceeds following commencement. It would be better to lay down only one procedure for commencing the action, whatever the nature of the dispute.

The consultation paper on multi-party actions follows the sensible proposals put forward by the Law Society's paper, 'Group Actions Made Easier'. It proposes a framework for procedures to which the court can apply to dispose of multi-party actions efficiently.

Problems include whether the approach should require claimants to opt in to become part of the class, or whether they should automatically become part of the class unless they opt out. It is important for the court to have wide and flexible powers so procedures can be adapted for each different situation.

One glaring omission from the Lord Chancellor's paper relates to funding. It seems extraordinary to consider the procedures for multi-party actions in a vacuum. As Geoffrey Hoon, Parliamentary Secretary at the LCD, stated in a recent debate in the House of Commons: 'It is a great mistake to look at the civil justice reforms and the legal aid reforms as separate questions. They are two sides of the same coin two halves of the single package of ensuring that our legal system is reformed to face the challenges of the 21st century. It would be misleading, therefore, to look at one without the other.'

There is a danger that in this consultation paper, by omitting any consideration of funding, the LCD is doing just that.