Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

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.

Reflecting on how measures set out in the Queen’s Speech 2015 may impact on the English Legal System

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The Queen’s Speech sets out each year the bare bones of the proposed legislative programme for the forthcoming 12 months.

I’ve been looking through the detailed briefing to see whether there are issues which will affect the English Legal System (ELS) that may not be apparent from the speech itself.

Here are my personal comments:

Enterprise Bill.

The headline aim of the new Bill is to reduce red tape and improve the ways in which regulators work. But there are also two specific ELS related issues that may be noted:

  • Establishing a Small Business Conciliation Service that will handle business-to-business disputes without the need for court action, tackling  in particular, late payment issues;
  • Introducing business rates appeals reform, including modifying the Valuation Tribunal powers to consider ratepayer appeals.

Immigration Bill

Among proposed measures to be set out here, there are proposals to change the way in which immigration appeals work. In particular, the Government plans to:

Extend the principle of “deport first, appeal later” from just criminal cases, to all immigration cases. In 2014 the
last government cut the number of appeal rights but other than foreign criminals, migrants retain an in-country
right of appeal against the refusal of a human rights claim. We will now extend the “deport first, appeal later” principle to all cases, except where it will cause serious harm.
Devolution
In addition to the well publicised plans to devolve further legislative power to the Scottish Assembly Government, there are also proposals for a new Wales Bill and a Northern Ireland bill that will also contain detailed devolution measures.
English Votes for English Laws
This contentious measure, designed to ensure that only English MPs vote on legislative measures that will only apply in England is to be introduced, not by legislation, but by changes to the Standing Orders of the House of Commons.
Investigatory Powers Bill
Among other issues this will deal with the question of who should authorise various forms of electronic surveillance – the Home Secretary or senior Judges (as recently recommended by the Government’s Independent Reviewer of Counter-Terrorism legislation)
Policing and Criminal Justice Bill
Among other things, this will change the law on Bail, The proposals are
To create a presumption that suspects will be released without bail unless it is necessary.
The Bill would initially limit pre-charge bail to 28 days, with an extension of up to three months, authorised by a senior police officer.
In exceptional circumstances, the police will have to apply to the courts for an extension beyond three months, to be approved by a magistrate.
This will introduce judicial oversight of the pre-charge bail process for the first time, increasing accountability and scrutiny in a way that is manageable for the courts.
British Bill of Rights
Proposals on this are delayed.
Victims of Crime Bill
This will put existing protections for Victims on a statutory footing and give greater protection to victims and witnesses
Votes for Life Bill
This will give UK citizens who live abroad a life time right to vote, rather than, as at present losing that right after 15 years.
Draft Public Sector Ombudsman Bill
Proposals to merge the current Parliamentary Commissioner, local government ombudsmen and the Health Service Ombudsman will be considered in a draft Bill.
Of course at this stage, most of the details are not available and they may well change during their various Parliamentary processes. But it is worth noting these issues so that you can keep an eye on them.
For more detail go to https://www.gov.uk/government/publications/queens-speech-2015-background-briefing-notes

The changes to Judicial Review – Criminal Justice and Courts Act 2015

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Despite considerable hostility from lawyers, the Coalition Government did enact important changes to the rules relating to Judicial review. These are contained in Part 4 of the Criminal Justice and Courts Act 2015. Suggestions that, had the outcome of the General Election been different, some of these changes might have been repealed, are obviously no longer on the table.

It should be remembered that important structural decisions had been taken in relation to Judicial Review well before these latest provisions were enacted. In particular,

  1. Immigration cases had been largely removed from the Administrative Court and transferred to the Upper Tribunal.
  2. Planning cases were to be dealt with by a new specialist Planning Court.

The provisions in the latest Act are arguably more technical in character. The actual impact of the changes will not emerge until they have been in operation for some time.

The changes, in outline, are as follows:

Section 84.  Limiting the discretion of the court

In judicial review cases the courts have always exercised discretion over whether or not to provide a remedy (“relief”). In practice, the courts have in the exercise of that discretion refused to provide relief where there would have inevitably been no difference to the outcome of the decision over which judicial review was sought, even if the reason which led to the bringing of a judicial review had not occurred.

Section 84 takes this further by providing that  relief must not to be granted and permission to seek that relief must not to be granted where the court considers the conduct complained about would be highly likely not to have resulted in a substantially different outcome for the applicant.

The Explanatory Notes to the Act offer the following example:

A public authority might fail to notify a person of the existence of a consultation where they should have, and that person does not provide a response where they otherwise might have. If that person’s likely arguments had been raised by others, and the public authority had taken a decision properly in the light of those arguments, then the court might conclude that the failure [to notify the particular person seeking JR] was highly unlikely to have affected the outcome.

Thus the historic discretion of the court is – under the new rules – has been limited by these stricter requirements.

However, the section gives back some discretion to the  court in that where the court considers that it is appropriate to grant relief or permission for reasons of exceptional public interest it may do so. If the court relies on this exception, it must certify that it has done so. These rules apply equally to the Upper Tribunal.

The unknown factor at the moment is the extent to which these new provisions will themselves generate litigation, in particular on the question of what is or is not ‘exceptional public interest’.

Sections 85 and 86. More financial information about funding of cases and the award of costs

Before these new provisions were enacted the position was as follows. Section 51 of the Senior Courts Act 1981 and section 29 of the Tribunals, Courts and Enforcement Act 2007, gave the High Court, the Court of Appeal and the Upper Tribunal  wide powers in respect of awarding costs. This extended to the power to award costs against any person who is not a party to a case. This might include a person who, although not a formal party to a claim, provides financial backing to the claimant and is seeking to drive the litigation for their own purposes. Similarly, where a “shell company” is created to bring the judicial review, whilst the directors of the company are not parties, they may be both funding and driving the litigation so it may be appropriate to make a costs award against them. However, there was no general requirement for an applicant to reveal the source of the funding he or she is receiving for the judicial review proceedings which may mean that it is difficult for the court to identify against whom costs orders should be made.

Section 85 stipulates that where an applicant applies to the High Court or the Upper Tribunal for permission to proceed with a judicial review under the law of England and Wales, the High Court or Upper Tribunal cannot grant permission unless the applicant provides specified information about the financing of the judicial review.The specified information requirements are set out in the Civil Procedure Rules Part 54.

Section 86 provides that when making costs orders under section 51 of the Senior Courts Act 1981 and section 29 of the Tribunals, Courts and Enforcement Act 2007 the High Court, the Court of Appeal and Upper Tribunal should have regard to the information provided by the applicant and should consider making costs orders against those who are not a party to the judicial review.

Section 87. Interveners and the payment of costs

Before section 87 was enacted, under the Civil Procedure Rules any person who is interested in the issues being considered in a judicial review case can seek permission from the court to intervene in the case, usually by filing evidence or making representations. At the end of the judicial review case the court considers who should bear the costs that arise from any intervention.

The courts have powers under section 51 of the Senior Courts Act 1981 to make an award of costs against a person who is not a party to a claim such as an intervener.

In making this decision, section 87 establishes two presumptions. (These apply only to cases in the Administrative Court or the Court of Appeal – not the Upper Tribunal):

  • first that those who apply to intervene in a judicial review case will have to pay their own costs and
  • secondly that, on the application of a party, if one or more of four specified conditions has been met, the intervener must pay any costs which their intervention, has caused that party to incur.

The four specified conditions are:

a) the intervener has acted, in substance, as the sole or principal party – for example, where the intervener drives the judicial review taking on the proper role of one of the parties;
b) the intervener’s evidence and representations to the court, taken as a whole, have not been of significant assistance to the court – for example, where some of the points the intervener makes are helpful but on the whole the evidence and representations are not helpful;
c) a significant part of the intervener’s evidence and representations relates to matters that it is not necessary for the court to consider in order to determine the issues in the case – for example, where the intervener uses a significant portion of the time in court to make arguments not related to the issues in the case; and
d) the intervener has behaved unreasonably – for example, where the intervener makes overlong, unnecessary submissions which extend the time taken for the hearing.

Neither presumption  applies where the court considers there to be exceptional circumstances which would make it inappropriate.

It should be noted that where the court invites a person or body to intervene in a JR case, these presumptive rules do not apply; the new  rules only apply where the intervener has applied to intervene in the case.

These provisions were of great concern to a number of NGOs who frequently assist the court on questions that arise in key JR cases. At present, it seems as though agencies with relevant expertise who can add value to JR proceedings should escape the costs sanctions. But again this is a matter that can only be assessed in the light of experience.

Sections 88 – 90. Limiting the use of ‘costs-capping’ orders

A costs capping order is an order of the court which limits the costs which a party may recover from another party at the conclusion of the case. Where such an order exists, it has the effect of mitigating the impact of the normal rule that the loser in litigation pays the winner’s costs.

In judicial review cases, a particular sort of costs capping order, known as a protective costs order, was developed by the courts. Here, costs would typically by capped on an “asymmetric” basis. Thus,  the amount recoverable by a successful defendant from the applicant would be capped at a lower level than the amount recoverable by a successful applicant from the defendant (which may not be capped at all). If such an order has been made and the applicant is unsuccessful in the proceedings to which the order applies, the applicant will only be liable to pay the successful defendant’s costs up to the amount specified in the order, and the defendant will have to cover any balance of its legal costs itself.

The effect of these rules was to potentially increase the cost to public bodies who were defending judicial review proceedings.

When making an order capping the applicant’s costs liability, the court may also include a “cross-cap”, limiting (generally at an amount rather higher than the cap on the applicant’s liability) the amount of costs the defendant would be liable to pay the claimant if the claim succeeds. This meant that an unsuccessful defendant would only be liable to pay the successful applicant’s costs up to the amount specified in the order and the applicant would cover any remaining costs he or she had incurred. But the potential cost burden on the defendant would be greater than the potential cost burden on the applicant.

As noted above, protective costs orders were developed by the courts. The principles governing when and on what terms they should be made were re-stated by the Court of Appeal in the case of R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192. The Corner House principles provided for protective costs orders to be for exceptional circumstances in cases concerning issues of public importance. However, over time their use has widened.

Sections 88 – 90 replace the judge-made rules with a statutory code.

The heart of section 88 is in subsections 6 – 8. These provide:

1 The court may make a costs capping order only if it is satisfied that—

  • the proceedings are public interest proceedings,
  • in the absence of the order, the applicant for judicial review would withdraw the application for judicial review or cease to participate in the proceedings, and
  • it would be reasonable for the applicant for judicial review to do so.

2 The proceedings are “public interest proceedings” only if—

  • an issue that is the subject of the proceedings is of general public importance,
  • the public interest requires the issue to be resolved, and
  • the proceedings are likely to provide an appropriate means of resolving it.

3 The matters to which the court must have regard when determining whether proceedings are public interest proceedings include—

  • the number of people likely to be directly affected if relief is granted to the applicant for judicial review,
  • how significant the effect on those people is likely to be, and
  • whether the proceedings involve consideration of a point of law of general public importance.

Section 89 sets out the factors the court must consider when making a costs capping order. These are:

  • the financial resources of the parties to the proceedings, including the financial resources of any person who provides, or may provide, financial support to the parties;
  • the extent to which the applicant for the order is likely to benefit if relief is granted to the applicant for judicial review;
  • the extent to which any person who has provided, or may provide, the applicant with financial support is likely to benefit if relief is granted to the applicant for judicial review;
  • whether legal representatives for the applicant for the order are acting free of charge;
  • whether the applicant for the order is an appropriate person to represent the interests of other persons or the public interest generally.

The section also provides that if an order is made capping the costs which the applicant is liable to pay in the event that he loses, the court must also make an order capping the costs the defendant is liable to pay if he loses.

Section 90 enables environmental cases to be excluded from the codified regime provided for in these sections as such cases are governed by a separate regime arising from the Aarhus Convention and the Public Participation Directive.

Sections 91-92 Amendments to the rules relating to planning decisions

These sections, with Schedule 16 of the Act make detailed changes to the ways in which challenges to planning decisions may be made and the time periods within which such challenges must be made.

Written by lwtmp

June 17, 2015 at 11:23 am

Impact of fees on the work of Employment Tribunals – post implementation review

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When fees were introduced in the Employment Tribunals, in July 2013, the government made a commitment to review their impact. On 11 June 2015, the Government announced the start of that review.

The original objectives of the policy were:

  • to transfer some of the cost from the taxpayer to those who use the service, where they can afford to do so
  • to encourage the use of alternative dispute resolution services, for example, ACAS conciliation
  • to improve the efficiency and effectiveness of the tribunal

The review will consider how effective the introduction of fees has been at meeting the original objectives, while maintaining access to justice.

The review will also consider the effectiveness of the new fee remissions scheme, which was introduced in October 2013.

The review will take into account a wide range of evidence including:

  • tribunal data on case volumes, case progression and case outcomes]
  • qualitative research on the views of court and tribunal users
  • the general trend of the number of cases appearing at tribunals before the fees were introduced
  • any consequences arising as a result of an improved economy on the number of people being dismissed
  • to what extent there has been discouragement of weak or unmeritorious claims
  • whether there has been any impact because of changes in employment law; and other reasons for changes in user behaviour

The terms of reference for the review can be seen at https://www.gov.uk/government/publications/employment-tribunal-fees-post-implementation-review

The review is expected to be completed later in the year. The Government states that it will consult on any proposals for reforms to the fees and remissions scheme.

This exercise is likely to generate some controversy given the significant decline in the numbers of cases now being taken to the Employment Tribunal.

Written by lwtmp

June 16, 2015 at 2:39 pm

Legal Aid – Exceptional Cases Funding – recent developments

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Following enactment of the Legal Aid Sentencing and Punishment of Offenders Act 2012,(LASPO) the scope of civil legal aid was significantly reduced. Civil legal services could only be funded under the new legal aid scheme which fell within statutorily prescribed classes of case. (See LASPO section 9 and schedule 1).

However, section 10 of the Act did provide that, in exceptional circumstances, civil legal services could be provided where

(a) … it is necessary to make the services available to the individual … because failure to do so would be a breach of –

(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) … it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

The Director of Case Work has the statutory responsibility for making such decisions. In reality, the decisions are taken by case workers working within the Legal Aid Agency.

In coming to their decisions, case workers are required to take into account Guidance issued by the Lord Chancellor. (LASPO section 4.)

The Lord Chancellor was clearly anxious that, unless he was careful, the existence of exceptional funding might create a means for getting round the limitations he sought to impose on the Legal Aid scheme, which would have the effect of undermining the Government’s desire to reduce public expenditure on legal aid. Thus, in his guidance on exceptional case funding, which was published in 2013, it was stressed that, in reaching their decisions, case workers should understand that this funding ‘is to be used for rare cases’ only; ‘limited resources’ should be focussed ‘on the highest priority cases’. In relation to cases that might involve breach of Article 6 of the ECHR (right to a fair trial) the guidance stated: The overarching question to consider is whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings. This is a very high threshold” (original emphasis).

Shortly before Christmas 2014, the Court of Appeal handed down its decision in the case of Gudanaviciene . The case actually involved 6 cases which had been brought together because they raised in essence the same question – was the Lord Chancellor’s Guidance lawful? It was argued, in effect, that the terms in which the guidance had been drafted  imposed too high a threshold on applicants for exceptional funding, and that therefore the guidance went beyond the words of the Act, and were in consequence unlawful.

The Court of Appeal agreed with this argument. In the course of a long judgement, they held, in part, that

The fact that section 10 is headed “exceptional cases” and that it provides for an “exceptional case determination” says nothing about whether there are likely to be few or many such determinations. Exceptionality is not a test. The criteria for deciding whether an ECF determination should or may be made are set out in section 10(3) by reference to the requirements of the Convention and the Charter. In our view, there is nothing in the language of section 10(3) to suggest that exceptional case determinations will only rarely be made.

They therefore concluded that the Lord Chancellor’s Guidance was unlawful.

The question for Government was: how to respond to this judgement? There were two options: take a further appeal to the Supreme Court; or reissue the guidance and hope that the revised guidance would comply with the Court of Appeal’s interpretation of LASPO.

In the event, the Government decided on the latter course. On 9th June 2015, the Lord Chancellor published revised guidance on how exceptional case funding decisions are to be made in future. While those who drafted the revised guidance are still concerned that the provision of exceptional case funding should be kept under controi, the ‘tone’ of the document seems to have softened. Indeed the emphasis, for case workers taking decisions on these matters is whether – as the Act says, the provision of such funding is necessary.

The recent election of the new Conservative Government has clearly scotched any lingering hopes in the legal profession that there would be any major softening of policy on civil legal aid. But the revised guidance on exceptional case funding for civil legal services does represent a change in emphasis which practitioners must note and apply.

To read the judgement of the Court of Appeal in the Gudanaviciene case go to https://www.judiciary.gov.uk/wp-content/uploads/2014/12/gudanavicience-ors-v-dir-of-legal-aid.pdf

To read the revised guidance on emergency case funding (non-inquest) go to https://www.gov.uk/government/publications/legal-aid-exceptional-case-funding-form-and-guidance. This page also gives a link to the guidance relating to inquest cases.

Written by lwtmp

June 16, 2015 at 2:30 pm

What is happening to Legal Aid? Reports from the Legal Aid Agency June 2015

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Publication of the second Annual Report of the Legal Aid Agency might be thought to be an opportunity to find out in a bit more detail about what is happening to Legal Aid, following implementation of the Legal Aid Sentencing and Punishment of Offenders Act 2012. Those expecting such information will be very disappointed. The bulk of the Annual Report details how various business targets have or have not been met during the year under review. The report is thus about administrative and operational outcomes, rather than giving a view of how citizens are (or are not) being assisted by legal aid.

The Annual Report appeared on the same day as a much shorter summary by the Director of Legal Aid of issues that had come up during the same reporting year. This is also very general in tone – though it does mention a couple of cases that went to the Court of Appeal – and is more about the process of dealing with cases than anything else.

All the details on the current operation of the legal aid scheme is now put into quarterly statistical reports. The next is due at the end of June 2015. I will report on these in due course. But I very much regret that the reporting strategy of the former Legal Services Commission – which used to run legal aid – which included the key statistical headlines and provided a commentary on how the scheme was working for the public has not been continued.

To see the 2nd Annual Report go to https://www.gov.uk/government/publications/legal-aid-agency-annual-report-and-accounts-2014-to-2015

The Director of Legal Aid Case Work’s Report is at https://www.gov.uk/government/publications/director-of-legal-aid-casework-annual-report-2014-to-2015

Written by lwtmp

June 15, 2015 at 9:33 am

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