The Civil Justice Council has just published an important report on the potential for the use of new processes to deal with disputes in small value claims, under £25,000.
In summarey, the report states:
‘Our principal recommendation is that HM Courts & Tribunals Service (HMCTS) should establish a new, Internet-based court service, known as HM Online Court (HMOC). We recommend that HMOC should be a three-tier service.
- Tier One of HMOC should provide Online Evaluation. This facility will help users with a grievance to classify and categorize their problem, to be aware of their rights and obligations, and to understand the options and remedies available to them.
- Tier Two of HMOC should provide Online Facilitation. To bring a dispute to a speedy, fair conclusion without the involvement of judges, this service will provide online facilitators. Communicating via the Internet, these individuals will review papers and statements and help parties through mediation and negotiation. They will be supported where necessary, by telephone conferencing facilities. Additionally, there will be some automated negotiation, which are systems that help parties resolve their differences without the intervention of human experts.
- Tier Three of HMOC should provide Online Judges – full-time and part-time members of the Judiciary who will decide suitable cases or parts of cases on an online basis, largely on the basis of papers submitted to them electronically as part of a structured process of online pleading. This process will again be supported, where necessary, by telephone conferencing facilities.
The establishment of HMOC will require two major innovations in the justice system of England and Wales. The first is that some judges should be trained and authorized to decide some cases (or aspects of some cases) on an online basis. The second innovation is that the state should formally fund and make available some online facilitation and online evaluation services.
To ensure the implementation of our principal recommendation, we propose three supporting recommendations:
• that HMCTS introduces an ODR stream into its current programme for the reform of civil, family, and tribunal work, and allocates a modest fraction of its £75 million annual reform budget (over five years) for the establishment of HMOC;
• that all political parties offer in-principle support for HMOC, as a viable way of increasing access to justice and reducing the cost of the resolution of civil disputes; and
• that the Civil Justice Council invites the ODR Advisory Group to commence a new phase of work, collaborating with HMCTS and the Judiciary in formally piloting ODR, designing HMOC, and raising awareness of this new approach to the handling of civil disputes.
Although our terms of reference are restricted to civil claims under the value of £25,000, we believe that that the jurisdiction of HMOC should also be extended to suitable family disputes and to appropriate cases that come before today’s tribunals.’
It seems to me that developments on these lines are inevitable, for two particular reasons:
First, there are already in existence in the UK a number of dispute resolution procedures that are efficient and very cost effective using modern IT. Examples mentioned in the report include the Financial Services Ombudsman scheme, the Traffic Penalty Tribunal scheme, and Resolver.co.uk. However the majority of live examples are currently operating abroad. It is a pity that other similar procedures already operating in UK are not mentioned – for example the tenancy dispost dispute resolution schemes, all of which operate online and are free to appellants. (I am Chair of the Board of one of the companies offering this service.)
Second, the EU is in the final stages of ensuring that new forms of consumer ADR and ODR will be in place in member countries in the near future.
However, I also think more work needs to be done on considering the sources of the resources needed for running the service. Will this all come from the state? from users? from insurance companies needing to get disputes resolved? from industry bodies?
It also needs to be asked who the adjudicators should be. The report talks about members of the judiciary. But large numbers of disputes do not involve complex questions of law – they depend on the finding of facts based on evidence provided. It is not self evident to me that the only people capable of reaching sensible conclusions are judges. Indeed the existing schemes demonstrate that this is not the case.
Further development will be noted here as they occur.
Meantime, the CJC report is available at http://www.judiciary.gov.uk/reviews/online-dispute-resolution/odr-report-february-2015/
On 30 July 2014, I summarised the Government’s proposals for ‘supporting heroes’ contained in the Social Action, Responsibility and Heroism Bill 2015. The proposals have now completed the Parliamentary process, and the Social Action, Responsibility and Heroism Act 2015 is now on the statute book.
To recap, the Act provides that when dealing with negligence claims or claims for breach of statutory duty the courts should consider:
- whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members (section 2) ;
- whether the person , in carrying out the activity giving rise to the claim , demonstrated a generally responsible approach towards protecting the safety or other interests of others (section 3) ;
- whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to his or her own safety or other interests (section 4).
The Act will come into force on a date to be announced later.
The results of the inquiry by Lord Justice Leveson into the efficiency of criminal proceedings was published in January 2015.
His task was to come up with recommendations that could be implemented without legislative change.
In summary, he recommends:
- the greater use of video and other conferencing technology across the system (including courts and prisons) particularly featuring remote hearings in the Crown Court, which would lead to a better service for all those involved and reduce both delay and cost (para. 40-50);
- facilitating the use in court of evidence gathered by police on video cameras mounted on their bodies or helmets (para. 58) and a streamlined approach to other evidence which has been captured electronically, such as interviews of child witnesses (achieving best evidence) and interviews with defendants (para. 250);
- more flexible opening hours in magistrates’ courts to accommodate those who cannot attend hearings during normal office hours (para. 54);
- tighter case management by judges, including, in appropriate cases, the provision of timetables for evidence and speeches (para. 274, 281);
- that contracts awarded to those responsible for delivering prisoners to court should require greater efficiency so that prisoners appear on time and do not delay proceedings (para. 214).
- that there should be funding available to pay for the inevitable cost of changing from the current systems to the more efficient ones (para. 320).
There is also an interesting chapter (chapter 10) on other changes that might be contemplated, but on which, because they would require legislation, he does not make recommendations. These include the controversial question of whether the ways in which defendants can opt for jury trial should be changed.
The full report can be found at http://www.judiciary.gov.uk/publications/review-of-efficiency-in-criminal-proceedings-final-report/
Big changes are in progress in the family justice system. Researchers, both within government and outside, are engaged in a number of research projects designed to examine how the family justice system is working. Indeed, a number of recommendations in the Family Justice Review related to the need to better share relevant research and good practice throughout the family justice system. The government accepted these recommendations and agreed to work with the Family Justice Board to help provide social research evidence to family justice professionals and wider stakeholders.
The Family Justice Research and Analysis team in Ministry of Justice Analytical Services are supporting this through their Family Justice Research Bulletin. The 5th volume of the Bulletin was published in January 2015. The 4th is also available on-line but numbers 1-3 are not. It is planned that further bulletins will be published roughly every six months.
Given the controversies that surround the operation of the family justice system, the undertaking and publication of high quality empirical research is obviously necessary to ensure that the system is working as intented.
One of the principal findings in the present edition is that public knowledge of what is happening to the family justice system is very sketchy; and that government hopes for more use of mediation are still thwarted by a lack of willingness of parties to participate in mediation. There also seems to be a lack of understanding that while legal aid for family matters has been cut back, it is still available for mediation.
Those interested in the research discussed in the bulletin can find full details at https://www.gov.uk/government/publications/family-justice-research-bulletin-5-january-2015
Legal practitioners have long argued that the only way to deliver proper legal advice and assistance is by face to face interviews with clients. With the development of new technologies, this view has come under increasing attack. It has been argued that remote contact via phone or email can often be just as effective and will often be more economical. An important research report on the issue by Alan Paterson and Roger Smith was published in 2014: see http://www.nuffieldfoundation.org/face-face-legal-services-and-their-alternatives-global-lessons
One of the fundamental changes made to the legal aid scheme as the result of the passing of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 is that, from April 1, 2013, in a number of matters that are still within the scope of the legal aid scheme, potential users of the legal aid scheme can only access the civil legal aid scheme through a ‘gateway’. Clients cannot get assistance by going direct to, for example, a solicitor.
(There are three exceptions, for those who are:
- in detention (including prison, a detention centre, or secure hospital);
- children (defined as being under 18); or,
- where the matter for which they need assistance is one where the user has previously been assessed as requiring face-to-face provision, has accessed face-to-face within the last twelve months, and is seeking further help to resolve linked problems from the same face-to-face provider.)
The Gateway is delivered by the Civil Legal Advice (‘CLA’) advice helpline for England and Wales, paid for by legal aid. It provides, for people who qualify for civil legal aid, specialist legal advice, primarily by telephone, online, and by post, in relation to
- Special Educational Needs,
- housing, and
- family issues.
It is available Monday to Friday 9am to 8pm and Saturday 9am to 12.30pm. Outside these times users can leave a message and CLA will call back within one working day.
Clients who qualify for legal aid in the first 3 Gateway categories listed above must usually receive any advice remotely. Clients who qualify in the other 2 categories of law have a choice about whether to receive any advice remotely or via a face-to-face provider.
The gateway provides a two-tier system. At tier one, the operator will determine whether the matter is within the scope of legal aid and will also determine the financial eligibility of the client to legal aid. If both these tests are satisfied, the client is referred to a specialist second tier advice provider. In cases that fall outside the scope, operators are training to inform people about possible alternative advice providers, e.g. in the charitable advice or third sectors.
Where a case is found to be within the scope of CLA, the client is referred to a second tier provider – a specialist who will normally provide advice remotely without a face-to-face meeting with the client.
The one exception to this is that where a client needs legal representation, arrangements will be made for a face-to-face meeting.
Because the compulsory element of the scheme was new, the Government undertook to review how the scheme was working within the first two years of its operation. In December 2014, it published the outcome of this review (and four separate research reports that were commissioned by the Government).
The broad conclusion was that, while there were matters that needed tweaking, the basic operation of the gateway was working satisfactorily,
My prediction is that, as policy evolves, there will be more use of these modes of accessing legal advice and assistance.
The Government’s view is available at https://www.gov.uk/government/publications/civil-legal-advice-mandatory-gateway-review. Annex A gives more detail about the issues within scope. Annex B gives details about the agencies currently providing the gateway service.
The related research reports are at https://www.gov.uk/government/publications/civil-legal-advice-mandatory-gateway-research-findings
In June 2014, new fees for taking civil proceedings were introduced, designed to bring in additional revenue to the Court Service/Ministry of Justice.
In January 2015, a further paper was published by the Ministry of Justice which announced further decisions relating to court fees, and which raised for consultation yet other suggestions for increasing court fees. These proposals are set against a background where the income which the initial changes had hoped to generate has not been realised.
The principal change is that the fee to issue proceedings for the recovery of money is raised to 5% of the value of the claim for all claims over £10,000, up to a maximum of £10,000. The fees for claims of less than £10,000, which represent over 90% of all money claims, will remain at their current levels. Discounts of 10% will apply to these fees where the claim is initiated electronically using the Secure Data Transfer facility or Money Claims Online.
The Government has decided not to implement the proposed increase to the fee for a divorce, or either of the options for charging higher fees for commercial proceedings.
The Government is now consulting on proposals
- to raise the fee for a possession claim by £75.
- to increase the fee for a general application in civil proceedings from £50 to £100 for an application without notice or by consent; and from£155 to £255 for an application on notice which is contested.
It is proposed that the latter proposal should be subject to an exemption for:
- applications to vary or extend an injunction for protection from harassment or violence;
- applications for a payment to be made from funds held in court; and
- applications made in proceedings brought under the Insolvency Act 1986.
The consultation period is only 6 weeks. Final decisions will be announced in due course.
At the end of December 2014, the Government introduced a new scheme for the imposition of financial penalties on claims management companies (CMC) that fail to adhere to the regulations that control this sector of the legal services market. Made under provisions in the Financial Services (Banking Reform) Act 2013, from 29 December 2014, the imposition of a financial penalty becomes an additional available enforcement sanction for use against non-compliant authorised persons under the following circumstances:
• As a consequence of a failure to comply with the Conduct of Authorised Persons Rules
• As a consequence of a failure to comply with requirements regarding the provision of
information or documents to the Regulator
• As a consequence of a failure to comply with a requirement to take out a policy of
professional indemnity insurance
• As a result of the Regulator being obstructed in its execution of a warrant to enter and search
premises for the purposes of investigating a complaint about the activities of a regulated
CMC, or assessing the regulated CMC’s compliance with the conditions of its authorisation
• As a result of the Regulator being obstructed from attempting to take possession of, or copies
of written or electronic records found when executing a warrant to enter and search premises.
It should be noted that these penalties are not imposed by a court but by the regulator of CMCs. The guidance states:
“In practice under the CMR Unit’s revised Enforcement Policy, a financial penalty is likely to be
– Breaches have continued despite previous compliance advice or warnings
– Detriment caused to consumers or third parties in general can be clearly monetised
– Any financial gain or loss avoided by the business can be monetised
– The business has sufficient financial means to pay a penalty
– No previous formal enforcement action has been imposed
– Action to vary, suspend or cancel the authorisation of a business would be disproportionate
under the circumstances
This list is non-exhaustive but sets out some relevant indicators that are likely to be considered when
deciding whether to initiate the penalty calculation process or move to consider the other formal
Full details of the scheme are set out at https://www.gov.uk//government/publications/claims-management-companies-financial-penalties-guidance
In addition it should be noted that from January 2015, the Legal Ombudsman will have power to deal with complaints about bad practice by CMCs.