An essential part of the HMCTS reform programme involves deciding how best to deliver civil justice in England and Wales in a modern age of information technology.
The Lord Chief Justice and the Master of the Rolls, as Head of Civil Justice, have recently asked Lord Justice Briggs to carry out an urgent review of the structure of the courts which deliver civil justice. His work is designed to ensure that the structure of the court system aligns with the reform programme and in addition to look at the overall structure of civil justice. He has also been asked to look at the relationship of those courts with the Family Court and with tribunals.
This aim is to assist HMCTS by ensuring that the reform programme comes up with a service which makes best use of the large capital investment proposed and provides a modern, efficient and accessible civil dispute resolution service for all.
An interim report is scheduled for December 2015.
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.
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
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
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.
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.
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.
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/
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
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
- 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 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
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/