Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Review of the Courts and Tribunals estate: consultation

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On 16 July 2015, the Government published proposals for reviewing the numbers of courts and tribunals buildings, with as view to amalgamating some and closing others.

At present (and despite recent closures) Her Majesty’s Courts and Tribunals Service still operates 460 courts and tribunal hearing centres across England and Wales. The estate costs taxpayers around half a billion pounds each year, and at present, much of it is underused. For example, in 2014, over a third of all courts and tribunals were empty for more than fifty per cent of their available hearing time.

The new consultation puts forward proposals that aim to reduce this surplus capacity. It proposes the closure of 91 court/tribunal buildings. These represent 16% of hearing rooms across the estate which are, on average, used for only a third of their available time. That is equivalent to fewer than 2 out of 5 days in a week. Indeed, the majority of these courts are not used for at least two thirds of their available time, and one in three are not used three quarters of the time.

The arguments against closure tend to fall into two categories. First, is that courts are often landmark buildings, whose closure will adversely affect specific communities. The second, is that closure will reduce the ability of users to get to court for hearings. On the latter point, the Government notes:

1. Attending court is rare for most people. It will still be the case that, after these changes, over 95% of citizens will be able to reach their required court within an hour by car. This represents a change of just 1 percentage point for Crown and magistrates’ courts and 2 percentage points for County Courts. The proportion of citizens able to reach a tribunal within an hour by car will remain unchanged at 83%.

2. To ensure that access to justice is maintained, even in more rural locations, the Government is committed to providing alternative ways for users to access court/tribunal services. That can mean using civic and other public buildings, such as town halls, for hearings instead of underused, poorly-maintained permanent courts.

3. In my view by far the most important argument is that the Government argues that it is reforming the courts and tribunal service so that it meets the needs of modern day users. As it brings in digital technology for better and more efficient access to justice (which hitherto has been pitifully slow), fewer people will need to physically be in a court.

The full consultation is at https://www.gov.uk/government/consultations/proposal-on-the-provision-of-court-and-tribunal-estate-in-england-and-wales. The Consultation runs until early October 2015.

On the question of amalgamation of existing buildings, the Government states that it is not consulting on these matters but will be liasing with stakeholders in the places affected.

Written by lwtmp

July 26, 2015 at 3:09 pm

Judicial review: new consultation

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Decisions on the reform of Judicial Review were taken by the last Coalition Government.

This consultation seeks views on detailed proposals for court and tribunal rules which are needed to bring into effect some of the changes made to juducial review procedures. Thus the consultation paper under review here sets out proposals:

  • that a declaration of funding sources is required on an application for permission to bring judicial review;
  • that details of third party funding or likely funding in connection with an application for judicial review, need not be provided where the funding is below a threshold of £1,500; and
  • that a more detailed picture of the applicant’s financial circumstances is required on application for a costs capping order than on application for permission

The Government argues that these proposals will limit the potential for third party funders to avoid their appropriate liability for litigation costs.

It  also intends that the new rules will ensure that when costs capping orders are made – limiting or abolishing a party’s costs liability – they are made in appropriate cases.

Details of the Consultation, which runs until mid September 2015, are at https://consult.justice.gov.uk/digital-communications/reform-of-judicial-review-proposals-for-the-provis

Written by lwtmp

July 26, 2015 at 2:46 pm

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Court fees: new decisions; new consultation

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In purely commercial terms, the civil justice and tribunals system operates at a financial loss. Many argue that this is as it should be – the provision of courts and tribunals is a public service that should be financed generally by the state, not just by those who have to use the courts. But the former Coalition Government and the current Conservative Government do not share this view. They argue that users of court and tribunal services should pay more for them than they historically they have done. Despite recent increases in court fees, the Government states that the Courts and Tribunals Service costs £1 billion more than the income received through fees.

In January 2015, I noted here the decisions of the Government to introduce new court fees – decisions which, when they came into effect in April, resulted in a great deal of complaint from the legal profession. Those decisions were also accompanied by a consultation on other proposed changes to court fees.

This incremental approach to policy making – linking decisions and consultations – has now been used again. In July 2015, the newly elected Conservative Government reached its conclusions on the issues it consulted on in January 2015, and at the same time set out further proposals for fee changes on which views are sought – nicely timed for the holiday period when Ministers and civil servants are away, leaving holiday homework for those who have to respond to these documents!

The July 2015 document sets out the following principal decisions and issues.

Court fees – general

1. Following the January consultation, the Government has decided to increase the fees for issuing a possession claim in the county court by £75, from £280 to £355. The Government claims that the available evidence suggests that this increase will not deter anyone who would otherwise have taken their claim to court. it does not mention the ultimate impact this decision may have on the person against whom possession is being sought.
2. The Government has also decided to increase the fees for general applications in civil proceedings by £50, from £50 to
£100, for an application by consent and by £100, from £155 to £255, for a contested application. In order to ensure the most vulnerable are not affected, the Government has decided to exclude from this fee rise applications such as those to vary or extend an injunction for protection from harassment or violence.
Divorce fees
In December 2013, the Coalition Government also consulted on increasing the fee payable to issue divorce proceedings from £410 to £750. The Government has now announced that it will Increase the fees for issuing divorce proceedings to £550. The Government states:
We have carefully considered the concerns raised during the consultation and decided not to increase fees by 80% as originally proposed. Instead we will press ahead with a more affordable increase of about a third. We are also protecting the most vulnerable by ensuring that fee remission is available for those who need it, such as women in low wage households.
What is interesting to me is whether there are opportunities here to encourage parties to potential divorce proceedings to issue proceedings on-line. While some divorce proceedings are extremely complex, many are not. Should not the Government be developing a portal to enable divorce proceedings to be issues on-line, such as now happens in other parts of the civil justice system, e.g. for money claims and possession claims? Lower fees for issuing proceedings online would be expected.

It cannot be said that the three changes listed above are going to impact significantly on the £1bn shortfall; the Government’s own estimates are that the increased fees will only raise around £60 million.

Further proposals

It is worth remembering that in determining the balance between what users pay towards the overall cost of the court and tribunal service as compared with the financial burden that falls on the taxpayer. That is why, in the last Coalition Government,  section 180 of the Anti-social Behaviour Crime and Policing Act 2014 gave the government power to set fees at a level above the costs of proceedings to which they relate, i.e. in crude terms to make a surplus on certain types of proceedings which could be used to fund other types of process.

The Government has now set out further proposals relating to fees for proceedings.

First, it proposes an increase in the maximum fee for money claims from £10,000 to at least £20,000. Fees are currently payable on 5% of the value of a claim up to a maximum fee of £10,000. The proposal is therefore to double the maximum fee. The Government notes that this change will only affect the highest value claims, worth £200,000 or more. There are 1.2 million money claims each year, of which only 5,000 will be affected.That is just 0.4% of the total, or 1 in every 240 money claims. The Government argues, with some force, that many of the claims brought for higher values will involve large multi-national organisations or wealthy individuals. It therefore thinks it  right to ask them to contribute more. In order to protect
the most vulnerable, personal injury and clinical negligence claims will be excluded from this higher cap and fee remissions for those of limited means will continue to apply.
Second, the Government proposes to introduce or increase fees for certain tribunals. Thus fees in the Immigration and Asylum Chamber would, while applying exemptions to protect the most vulnerable.
The Government states it will not be applying any fees to the Social Entitlement Chamber of the First-tier Tribunal, where most applicants do not have the means to pay, or to the Mental Health Tribunal, which deals with especially vulnerable individuals.
However, it does want to introduce fees to the property, tax and general regulatory chambers. In the property tribunal, it proposes fees at low levels for the majority of applications, while setting higher fees for leasehold enfranchisement cases where there are often large sums of money at stake. In each of the Tribunals being consulted on, the Government says its aim is to recover 25% of the total cost of the service through fees with taxpayers footing the rest of the bill.
What is disappointing about these proposals is that there is no reference to the work done by the now defunct Adminitrative Justice and Tribunals Council, which suggested that discussion of income streams for providing the tribunals service should also include consideration of what financial contribution those government departments against whom decisions are being appealed should make, particularly in cases where the departmentd loses the appeal. The Council felt that the incentives on departments to get the decision right first time were not sufficiently strong.
The Consultation on these proposals runs until mid-September. It may be anticipated that consequent decisions will emerge around the end of the year.
Full details of the decisions and consultation proposals are in https://consult.justice.gov.uk/digital-communications/further-fees-proposal-consultation/supporting_documents/enhancedfeesresponseconsultationonfurtherfees.pdf.
Full lists of the new fees are in Annex B; lists of the proposed new fees are in Annex C.

Litigants in person: a problem for the civil justice system or a catalyst for change?

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Over three years ago, in this blog, I drew attention to a report of a committee of the Civil Justice Council chaired by Robin (now Mr Justice) Knowles on how the courts might deal with increasing numbers of litigants in person appearing in the civil courts.

Since that time, a number of further publications have appear indicating the concerns that the judiciary and the legal profession have in dealing with litigants in person (LiP).

For example, in October 2013, the Judiciary published their Handbook for litigants in person. Written by a team of county court judges, led by  HHJ Edward Bailey, this is a 170 page document giving guidance to the LiP on the different elements that make up the civil justice system and the different stages that a case may need to undergo for a dispute to be resolved. The Master of the Rolls, Lord Dyson, in a foreword wrote that the handbook

will, I am sure, play an important role in rendering the civil litigation process less daunting and more accessible for those litigants who represent themselves. In that regard it will play an important part in helping to maintain our commitment to access to justice as a right available to all.

I confess I have my doubts. By comparison with, for example, legal textbooks on civil procedure, the document is a relatively easy read – but that said for the non-professionally qualified person, I think it is pretty hard going. It would be interesting to know how many people have in fact been able to prepare themselves for an unrepresented trial by taking the advice set out in the handbook.

More recently in June 2015 the legal professions have published Litigants in person: new guidelines for lawyers,
a document which – in effect – reminds professionally qualified lawyers that they owe a duty to the court – not to make the case for the unrepresented party but at least not to take advantage of the fact that their opponent is unrepresented.

Concern about the rise in the numbers of LiPs has, of course, arisen because reductions in the amounts of legal aid for representation in court has reduced the numbers of cases in which parties can be professionally represented. And, in that context, both the judiciary and the legal professions efforts to make things a bit clearer for LiPs is to be welcomed.

But I think there are more fundamental questions which these publications do not address. In particular, there is an assumption that the current practice and procedure of the civil justice system is the right one, and that therefore the remedy is to give the LiP the skills to comply with current practices and procedures.

But what if the current practices and procedures, though ideal for lawyers and judges who are used to them, are not actually the most sensible or effective?

There are plenty of alternatives which might be thought about:

  • for example, tribunals in the main adopt procedures which are determined by the chair of the Tribunal;
  • the Financial Services Ombudsman use trained staff to assist those customers who are complaining about the service received from banks or other financial institutions to put their complaints into writing
  • other systems, such as Tenancy Deposit disputes use an electronic portal to ensure that the key documentation and evidence is available for the dispute resolver to deal with the case.

The Leggatt Review of Tribunals, published way back in 2001, talked of the tribunal having ‘an enabling role’. This did not mean that tribunal judges were biassed in favour of one party rather than another; rather the system should be designed to ensure that the unrepresented knew what information would be likely to be relevant.

The recent JUSTICE report, Civil Justice in an Age of Austerity began to make some rather more fundamental questions about whether the current practices and procedures of the civil justice system are sustainable. In that context, the ‘problem’ of LiPs raises questions that handbooks and guidelines – however well-intentioned – are unlikely to address.

To read the Judiciary Handbook go to https://www.judiciary.gov.uk/publications/handbook-litigants-person-civil-221013/

To read the legal professional guidance go to http://www.lawsociety.org.uk/Support-services/Advice/Articles/Litigants-in-person-new-guidelines-for-lawyers-June-2015/

Written by lwtmp

July 3, 2015 at 2:39 pm

Alternative Dispute Resolution for Consumers – new developments

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The Department for Business Innovation and Skills has just published an important policy paper relating to alternative dispute resolution for consumers. It summarises changes in the law which come into effect in July 2015.

The paper notes that common forms of ADR are:

  • mediation, where an independent third party helps the disputing parties to come to a mutually acceptable outcome
  • arbitration, where an independent third party considers the facts and takes a decision that’s often binding on one or both parties.

In the UK, there are already several large and well-established ADR schemes in regulated sectors. These include:

  • financial services
  • energy
  • telecoms

Outside the regulated sectors, many businesses are already members of voluntary ADR schemes.

Alternative Dispute Regulations 2015

Two sets of regulations, in March and June 2015, have been laid in Parliament to implement the European Directive on alternative dispute resolution (ADR) in the UK.

In outline, the regulations:

  • place an information requirement on businesses selling to consumers informing them of an ADR service they may be able to use in the event of a dispute that cannot be resolved in-house (this obligation does not come into effect until October 2015)
  • establish competent authorities to certify ADR schemes
  • set the standards that ADR scheme applicants must meet in order to achieve certification.

In the regulated sectors, the regulators will act as the competent authority. These include

  • Ofgem
  • Financial Conduct Authority (FCA)
  • Civil Aviation Authority (CAA)

In all other areas the Secretary of State will be the generic competent authority. He has appointed the Chartered Trading Standards Institute (CTSI) to carry out these functions on his behalf. The CTSI website sets out the bodies it has already certified as ADR providers; the information will be updated regularly as the implementation date gets closer.

While the regulations do not make participation in ADR schemes mandatory for traders, the regulations do require almost all businesses which sell directly to consumers to point the consumer to a certified ADR scheme – where they cannot resolve a dispute in-house – and declare whether or not they intend to use that scheme. The Government clearly hopes that traders will see that offering  their customers access to a free dispute resolution service, rather than going to court, will be an attractive additional service they can offer.

The Policy Paper also flags up developments in On-line Dispute Resolution where new law will be introduced in January 2016. This is designed to enable people who have bought goods or services online from other countries in Europe will have access to an on-line dispute resolution service (very much on the lines that e-Bay already offers).

It can be observed that these developments are being driven by the Department for Business not the Ministry of Justice – but they are clearly in line with MoJ policy relating to proportionate dispute resolution.

To read the policy paper, go to https://www.gov.uk/government/publications/alternative-dispute-resolution-for-consumers/alternative-dispute-resolution-for-consumers

To read about the Chartered Trading Standards Institute go to http://www.tradingstandards.uk/home.cfm

To see the list of certified ADR providers go to http://www.tradingstandards.uk/advice/AlternativeDisputeResolution.cfm

Written by lwtmp

June 24, 2015 at 10:48 am

Revolution in the Justice system?

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On 23 June 2015, the Lord Chancellor delivered a major speech on his vision for the development of the Justice system. Mr Gove is not shy of taking on existing established practices – witness his battles with the teachers when he was Secretary of State for Education under the Coalition Government.

In his speech, entitled What does a one nation justice policy look like? he argues that the justice system is in need of fundamental reform if is it to deliver access to justice to ordinary people.

A potentially very important difference between what he was trying to do in the world of education and what he now seeks to do to the justice system is that for the latter, much of the initiative for reform is coming from the judiciary itself. They see the need for better use of court facilities, fundamental investment in IT which would enable much legal work to be done without attendance at courts, support for new ideas – in particular in civil justice – endorsing proposals recently set out by Justice in its report Civil Justice in an Age of Austerity. (see this blog, entry for 5 May 2015)

First reactions to the Lord Chancellor’s speech can be heard in a special edition of the BBC programme Law in Action which was broadcast on the same day. The discussion – by Sir Stanley Burnton, Dame Hazel Genn and Keir Starmer – provides a useful basis for understanding what may start to unfold in the justice system over the next five years

What is absolutely certain is that anyone starting the study of law should be aware of what is in the pipeline – things are likely to change pretty quickly.

To read the speech go to https://www.gov.uk/government/speeches/what-does-a-one-nation-justice-policy-look-like

To hear the Law in Action Broadcast go to http://www.bbc.co.uk/programmes/b05zktnf#auto

The Centre for Justice Innovation, whose work is mentioned in the programme has a website at http://www.justiceinnovation.org/

Litigation (crowd) funding – a new approach

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Litigation funding is normally associated with high value commercial cases. Litigation funders provide the financial resources for high cost litigation and commercial arbitration on the basis that they will receive a return on their investment – often a percentage of damages recovered or agreed. Litigation funders will not take on personal injury cases or consumer cases because the damages involved are (usually) too low

But an article in the Sunday Times 21 June 2015 caught my attention. Under the headline Man, 87, sues care home for right to kiss his wife it was reported that an 87 year old man was seeking to establish a right to kiss his wife, who lives in a care home suffering from dementia.

At the end of the article it was stated that the man’s lawyers were working pro bono but also they were seeking to raise £4000 for legal fees through a new company called CrowdJustice.

Launched on 25 May 2015, CrowdJustice seeks to raise modest sums – up to £5000 – to help defray costs in cases which the company thinks have some social importance, such as the treatment of the elderly and vulnerable or have a wider community impact.

An example of the latter is the case being brought by a Colombian man, Gilberto Torres, who is  fighting a legal case before the UK High Court in order to end the impunity of British oil companies’ actions abroad. He claims that

Me and my family have had our lives destroyed because I tried to take a stand when I saw human rights and environmental abuses being committed to protect the interests of BP in Colombia, where I worked as an engineer. I was kidnapped and tortured in retribution, and now we’ve been forced to leave Colombia and live in exile. Help us get our lives back, and help expose in court the human rights violations committed by fossil fuel companies abroad.

At the moment, CrowdJustice is taking cases on an invitation-only basis. But it inviting those who think they may have a case that affects their community to get in touch.

The website states:

When someone has a court case that they feel passionate about and that affects others in their community, they can set up a Case Page on CrowdJustice that explains what the case is about and why they need help funding it. That person – the Case Owner – sets a deadline and funding target of the amount they need to raise to help offset the costs of taking their case forward. It’s up to you to support them, help spread the word and make pledges to help them meet the funding target.

Only when the funding target is met do the pledges get collected and backers’ cards get charged. If the funding target is not met, the pledges made do not get collected.

When a case is successfully funded, a Case Owner will keep in touch and update backers about the latest developments in a case.

Unlike litigation funding, those who invest in these community cases will not usually see any return on their investment (unless they have pledged more than £1000, where they may receive a percentage of the sum pledged back). Any surplus  at the end of a case is paid to the Access to Justice Foundation.

This is an innovative approach to the challenge of enabling access to justice in cases of potential social importance. For more details go to https://www.crowdjustice.co.uk/

For more details on the very different work of commercial litigation funders go to the home page of the Association of Litigation Funders of England and Wales at http://associationoflitigationfunders.com/.
This site gives links to the member companies who are offering litigation funding in commercial cases.

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