Martin Partington: Spotlight on the Justice System

Lawyers might think that a government research report with the above heading would/should have been published by the Ministry of Justice (MoJ). Would this not be a central theme in the Transforming the Justice System programme that is currently underway?

It may therefore come as a surprise that this is the title of a report commissioned and published by the Department for Business, Energy and Industrial Strategy (BEIS). In it consultants have looked at a number of contexts in which consumers may seek to obtain redress for problems they have with traders or other service providers.

The report seems to have been written with no account taken of the not inconsiderable body of work already done on the use of ADR in England and Wales (e.g. the reports by Professor Dame Hazel Genn). There is no reference to the court transformation programme. There is one reference to the Civil Justice Council (though not to its relatively recent paper on ADR). It is as though BEIS and MoJ are living in separate if not parallel universes, with no communication between them.

This may of course be deliberate. It is possible to imagine that BEIS – who have responsibility for promoting business and protecting consumers – have become fed up with the slow place of change in the use of ADR in the court system and want to charge ahead with their own initiatives.

What is interesting, however, is to see just how pervasive the use of ADR mechanisms are in the UK. The report sets out a list of 95 bodies who offer differing forms of ADR for the resolution of complaints and disputes. And there is an intriguing footnote citing more recent research, undertaken by Citizen’s Advice, which reveals that the total number of such schemes is approaching 150.

From the data they collected, the researchers suggest that ADR is quicker and cheaper than the courts; that those who use either the courts or ADR are in general, older, better off and better educated than consumers taken as a whole; and that these groups are in general better informed about the existence of different forms of ADR.

It is not the function of this report to argue that either use of ADR or use of the courts is to be the preferred method for resolving consumer disputes. But the researchers do, at the end, list a number of ‘indicators’ that could be used for ongoing monitoring of the use of ADR. This suggests to me that BEIS might hope to find over the years greater consumer awareness of and use of ADR schemes for the resolution of consumer disputes.

What the policy outcomes of this study will be are hard to discern from the present document. One may guess that, for modest-value disputes, use of different forms of ADR will steadily grow. What is surprising is the apparent lack of contact with others working on the reform of civil justice.

The report can be found at https://www.gov.uk/government/publications/resolving-consumer-disputes-alternative-dispute-resolution-and-the-court-system

(I am grateful to Walter Merricks, CBE, for drawing the existence of this report to my attention.)