On 29th January 2016, a pilot scheme was launched designed to give greater publicity to the work of the Court of Protection.
This is a specialist Court which makes decisions about the personal welfare (e.g. medical treatment) and the property and affairs of persons who lack capacity to make them themselves, applying a best interests test. The Court of Protection’s main base is in London but it also sits throughout England and Wales.
The Court of Protection was established by the Mental Capacity Act 2005. It is responsible for:
- deciding whether someone has the mental capacity to make a particular decision for themselves
- appointing deputies to make ongoing decisions for people who lack mental capacity
- giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
- handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
- making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration.
- considering applications to make statutory wills or gifts
- making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.
It deals with about 25,000 applications under the Act each year. A high percentage of applications relating to property and affairs are not disputed and they are dealt with on paper without a hearing.
A new Pilot Practice Direction will apply to new proceedings issued from 29 January 2016. The Practice Direction effectively changes the default position from one where hearing are held in private to one where hearings are held in public with reporting restrictions to protect identities. This means that when an order has been made under the pilot, both the media and the public will be able to attend, unless a further order has been made which excludes them.
The work of the Court has not been totally hidden from public view.
- Court of Protection judgments have been routinely published since 2010.
- Serious medical cases (such as a decision to stop life support) are held in public, with the identities of those concerned kept anonymous.
- Committal hearings where a custodial sentence is imposed are also held in public.
Her Majesty’s Courts and Tribunals Service (HMCTS) is also amending the way in which court lists are displayed, so that they provide a short descriptor of what the case is about, allowing the media and members of the public to make an informed decision on whether to attend the hearing. Lists will be published on a weekly basis in court buildings and online at www.courtserve.net.
This follows on from the development of practice in the Family Court where, for the last 6 years, accredited media have been able to report on proceedings. It is accepted that many will want these proceedings to be private; the pilot is designed to provide evidence about how the balance between publicity and privacy might be improved.
For further information see https://www.judiciary.gov.uk/announcements/court-of-protection-prepares-to-open-up/
I argue in my book that change is the key to understanding what is currently happening to the English legal system, and within that the legal profession.
In January 2016 the Law Society published its own challenge to the legal profession, looking at current trends and how they may have developed by 2020.
The press release accompanying publication of The Future of Legal Services states:
Changes to legal services will have an inevitable impact on the solicitor profession. We have identified the key drivers for change in the current landscape of legal services, and attempted to predict how solicitors’ and lawyers’ interests may change in the future, where they will face competition and what opportunities may present themselves in a changing market.
This report presents findings drawn from a range of sources: a literature review, round table discussions and interviews with a range of practitioners across different practice types, firm visit reports, and the outcomes from a series of three futures panels.
The key drivers of change in the legal services market can be clustered into five groups:
- global and national economic business environments
- how clients buy legal services (including in-house lawyer buyers, as well as small and medium-sized businesses and the public)
- technological and process innovation
- new entrants and types of competition
- wider political agendas around funding, regulation and the principles of access to justice
It seems inevitable that solicitors and lawyers face a future of change on a varied scale, depending on area of practice and client types. Business as usual is not an option for many, indeed for any, traditional legal service providers. Innovation in services and service delivery will become a key differentiating factor.
Two particular points stood out to me from an initial reading of what the Law Society has to say:
- They clearly take the view that the current model for the small ‘high-street’ practice has little future, particular as current practitioners retire. It is not a sustainable model for the future.
- The Law Society notes that 25% of practitioners now work as in-house counsel, so the amount of reliance of the corporate sector on firms of solicitors in private practice would seem to be reducing.
At the same time, the Law Society is convinced that imaginative and innovative lawyers will be able to develop new forms of legal service which will both offer them a living and provide a needed service to the public.
The report reinforces the view that students coming new to the study of law will have a lot to keep up with if they are to understand the professional world they may hope to enter in just 5 – 6 years’ time.
To see the report, go to http://www.lawsociety.org.uk/news/stories/future-of-legal-services/
Business problems decline but are costly
- The number of legal problems faced by small firms reduced significantly over the last two years reflecting better trading conditions. The most common problems related to trading, employment and taxation. Other businesses were the main source of problems.
- Half of firms reporting a legal issue said it had a negative impact; one-quarter of them reported loss of income and one-fifth reported health related problems. Total annual losses to small firms due to legal problems is estimated at £9.79bn.
- Larger small businesses, and businesses with BME and disabled business owners-managers, were most likely to experience problems.Limited engagement with legal service providers
- The large majority of firms had little contact with legal advisers. Less than one in 10 either employed in-house lawyers or had a retainer with an external provider. Over half of firms experiencing a problem tried to resolve it by themselves. When advice was sought, accountants were consulted more often than lawyers.
- There was a marked decline in the use of external support providers between 2013 and 2015, reflecting the decline in problems. Use of solicitors in the previous 12 months fell from almost 20% to almost 10%; and accountants from over 60% to just over 49%.Mixed attitudes to legal service providers
- Only 13% of firms viewed lawyers as cost effective – little improved since the LSB’s 2013 survey. Microenterprises were the least likely to view lawyers as affordable.
- Almost 50% of respondents strongly agreed or agreed with the statement that they use legal service providers as a last resort to solve business problems compared with 12% who disagreed strongly or disagreed.
- Satisfaction that law and regulation provide a fair trading environment increased from 30% in 2013 to 45% in 2015 – improving economic conditions as well as improvements in the regulatory environment may explain this change.
This report was one of the items used by the Competition and Markets Authority in deciding to undertake a Market Review of legal services.
To read the research report in full go to https://research.legalservicesboard.org.uk/wp-content/media/PUBLISH-The-legal-needs-of-small-businesses-19-October-2015.pdf
After the regulatory upheavals which led up to the Legal Services Act 2007 and the creation of the Legal Services Board, lawyers might have been forgiven for thinking that the regulatory playing field might be left untouched for a bit. But no. The Competition and Markets Authority announced in January 2016 that it was going to take a close look at competition in legal services provision by launching what is called a Market Study.
The Press release of the annoucement states:
The Competition and Markets Authority (CMA) will examine long-standing concerns about the affordability of legal services and standards of service. Concerns have also been raised about the complexity of the current regulatory framework.
In light of these concerns, the CMA’s market study plans to examine 3 key issues:
- whether customers can drive effective competition by making informed purchasing decisions
- whether customers are adequately protected from potential harm or can obtain satisfactory redress if legal services go wrong
- how regulation and the regulatory framework impact on competition for the supply of legal services
The announcement also stated: According to recent surveys … around one in ten users of legal services in England and Wales have said that the overall service and advice provided to them was poor value for money …, [and] amongst small businesses, only 13% said they viewed lawyers as cost-effective and around half agreed that they used legal service providers as a last resort to solve business problems.
The outcomes of a Market Study are very varied, and may range from a finding that all is well and that no further action need be taken, to a full scale investigation into the particular market.
The time line for the present study is that after a very short consultation (ending early Feb 2016) an interim report will be published in July 2016, with a final report at the end of the year.
For further information go to https://www.gov.uk/government/news/legal-services-study-launched-by-cma
This also provides links to some of the reports on which the case for launching the Market Study is based.
There is much talk, excitement even, at the prospect of the court system at last taking steps to embrace on-line technologies to increase efficiency in the process of resolving disputes.
There are already a number of proceedings that can be started on-line, such as possession proceedings and money actions.
The family courts are also engaged in these developments. But just before Christmas 2015 a problem was identified with one of the on-line forms that can be used – Form E.
Form E is the form on which parties in divorce, dissolution, nullity or judicial separation proceedings disclose information about their assets and liabilities. One feature of the Form is that is has a calculator built in which calculates a figure which judges can then use to judge any financial settlement.
This fault that was discovered meant that the automatic calculator in the form calculated the wrong total for an individual’s net assets by failing to deduct certain liabilities.
The fault had not always been there but it was present in versions of Form E which were online between April 2014 and mid December 2015 and also between April 2011 and January 2012.
HMCTS staff found that a total of 36,527 cases had used different versions of the Form, of which 3,638 files – 10% – contained the faulty calculator version of Form E. Of these, 1,403 cases were still live, allowing HMCTS to intervene immediately to clearly flag these cases to the courts in order to avoid the error affecting the final orders in these cases.
But 2,235 files – 6.1% – were closed cases, so that the fault could have affected the outcome.
On 21 January 2016 the Minister Shailash Vara announced that parties in these cases would be contacted to see whether they wanted their case to be reviewed.
Although the increased use of IT in court dispute-resolution procedures is inevitable, this instance is a reminder of the importance of ensuring that relevant software is throughly tested before it is made publicly available.
It should be noted that the error was not discovered by a solicitor (they tend to use different software) but by a company called the Family Law Clinic who provide low cost assistance to parties seeking to do the divorce themselves.
It may also be noted that DIY divorce is not just for those of moderate means. The high profile divorce announcement, also in January 2016, by Gary Lineker contained the information that he and his wife had obtained their divorce for just £400.
For the ministerial statement on Form E see https://www.gov.uk/government/speeches/family-justice.
For the family law clinic see http://www.familylawclinic.co.uk/contact-us.html
For news of the Lineker divorce see http://money.aol.co.uk/2016/01/18/how-the-linekers-did-it-keeping-divorce-costs-down/
Early in 2016, there was an announcement that more criminal cases would be dealt with in the magistrates’ courts, rather than being sent to the Crown Court.
The source for this announcement was not a new piece of legislation, redrawing the boundaries between cases heard in these two courts. Rather, it was the announcement that, from 1 March 2016, the Sentencing Council was issuing ‘definitive guidance’ on how cases triable either way – i.e. summarily (in the Magistrates’ Court) or on indictment (in the Crown Court) were to be allocated.
One of the key recommendations of the Leveson Review of Efficiency in Criminal Proceedings was
“Magistrates’ Courts must be encouraged to be far more robust in their application of the allocation guideline which mandates [emphasis added] that either way offences should be tried summarily unless it is likely that the court’ssentencing powers will be insufficient. The word “likely” does not mean “possible” and permits the court to take account of potential mitigation and guilty plea, so can encompass cases where the discount for a guilty plea is the feature that brings the case into the Magistrates’ jurisdiction. It is important to underline that,provided the option to commit for sentence is publicly identified, the decision to retain jurisdiction does notfetter discretion to commit for sentence even after requesting a pre-sentence report”.
1. In general, either way offences should be tried summarily unless:• the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; or• for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence.Other circumstances where this exception will apply are likely to be rare and case specific; the court will rely on the submissions of the parties to identify relevant cases.2. In cases with no factual or legal complications the court should bear in mind its power to commit for sentence after a trial and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.3. Cases may be tried summarily even where the defendant is subject to a Crown Court Suspended Sentence Order or Community Order.4. All parties should be asked by the court to make representations as to whether the case is suitable for summary trial. The court should refer to definitive guidelines (if any) to assess the likely sentence for the offence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including those advanced by the defence, including any personal mitigation to which the defence wish to refer.Where the court decides that the case is suitable to be dealt with in the magistrates’ court, it must warn the defendant that all sentencing options remain open and, if the defendant consents to summary trial and is convicted by the court or pleads guilty, the defendant may be committed to the Crown Court for sentence.
The guideline aims to bring about a change in culture and will inevitably provide some challenges, but the Council is confident from the responses to the consultation that the guideline will be welcomed by sentencers and will play a role in ensuring that justice is delivered fairly, swiftly and efficiently in more cases.
Lord Justice Briggs has been asked to undertake an urgent review of the structure of the civil courts, to accompany the court reform programme currently being undertaken by the Ministry of Justice. He has recently (12 Jan 2016) published an interim report.
It is clearly work in progress, in that it poses rather more questions than makes provisional recommendations as to what changes should be made. However, the following key issues are identified:
- Prepare the civil judiciary to play their part in the management of the HMCTS reforms from April 2016, including Judicial College training and staff to support the leadership judges.
- As soon as possible design the structure and software which will be needed for the re-organised courts, particularly the Online Court.
- Ease the burden on the Court of Appeal.
On on-line Courts, his provisional view is that
- There is a clear and pressing need to create an Online Court for claims up to £25,000 designed for the first time to give litigants effective access to justice without having to incur the disproportionate cost of using lawyers.
- There will be three stages: Stage 1- a largely automated, inter-active online process for the identification of the issues and the provision of documentary evidence; Stage 2 – conciliation and case management, by case officers; Stage 3 resolution by judges.
- The court will use documents on screen, telephone, video or face to face meetings to meet the needs of each case.
He raises a number of further questions, e.g. whether the on-line court should use the current Civil Procedure Rules, or work to new bespoke rules.
On the role of Case Officers, his provisional view is that some of the existing judges’ more routine and non-contentious work should be transferred to Case Officers supervised by judges. Parties should have the right to have a Case Officer’s decision reconsidered by a judge.
He then asks questions about how case officers should undertake their work: by mediating? or by written early neutral evaluation? He also asks what qualifications case officers should have.
He wants to see more civil work being dealt with in the regions outside London, and the development of expertise in dealing with civil cases in more centres outside London.
These issues are summarised in the Press Release, available at https://www.judiciary.gov.uk/civil-courts-structure-review/civil-courts-structure-review-ccsr-interim-report-published/press-summary-of-the-ccsr-interim-report-from-lord-justice-briggs/
The full report is downloadable through links at that page.
Interesting footnote: In line with his on-line vision for the Courts, Lord Justice Briggs is refusing to accept any written submissions on paper – all comments and ideas have to be submitted on-line.