Martin Partington: Spotlight on the Justice System

The Advisory Panel on Judicial Diversity published an important report in February 2010, which made 53 recommendations for improving the selection of those appointed to become judges. The Ministry of Justice Press release summarised the main points:

“The panel made 53 recommendations, finding that:

• the diversity of those entering the profession is significantly greater than that of those who have the experience to apply for judicial office. Therefore, delivering a more diverse judiciary is not just about recruiting talent wherever it may be found, but also about retaining talent and enabling capable individuals to reach the top.
• the Judicial Appointments Commission should revise its criteria for assessing merit, to support and underline with greater clarity its commitment to diversity.
• Selection processes should be open and transparent, promote diversity and recognise potential, not just at the entry points to the judiciary but for progression within it to the most senior levels.
• appraisal, owned and run by the judiciary, should be consistently implemented throughout the judiciary. This was particularly requested by women and black, Asian and minority ethnic judges.
• the Judicial Studies Board should evolve into a Judicial College offering courses in ‘Developing Judicial Skills’.
• the legal profession, including law firms, should actively promote judicial office amongst those who are currently not coming forward, and, together with the judiciary, support and encourage talented candidates from under-represented groups to apply.
• a proactive campaign of mythbusting should be undertaken as many of the perceived barriers to diversity are not reflected in practice.
• there should be no quotas or targets for recruiting under-represented groups. But improvements must be made to the way data is captured and shared, so that there can be systematic evaluation of what works and progress can be monitored against agreed benchmarks.”

The Panel also recommended the creation of a judicial diversity taskforce to oversee progress. The report can be found at http://www.justice.gov.uk/publications/judicial-diversity-report.htm.

The idea of the Judicial Studies Board becoming a Judicial College is not in fact a new one. And in the context of its work with tribunals it has long offered instruction on ‘judgecraft’. Applying this to the rest of the judiciary is very welcome – and recognises that judging is a craft that can be taught – not an innate ability that some have and others do not.

A new website http://www.justice.gov.uk/news/newsrelease100310b.htm gives a link to a mock trial where you can see what thought needs to go into the sentencing process. Give it a try and let me know what you think?

In a speech delivered in February 2010 Lord Bach referred to two sources of public information on law and rights which should be noted: first, http://www.direct.gov.uk/en/Governmentcitizensandrights/index.htm; and second, http://www.direct.gov.uk/en/CrimeJusticeAndTheLaw/index.htm which are useful official starting points for information on rights and criminal justice. For Lord Bach’s speech, see: http://www.justice.gov.uk/news/speech170210a.htm.

The review of the costs of taking civil proceedings – undertaken by Lord Justice Jackson – was published in January 2010.  I obviously need to comment on it here, since it considers an issue of fundamental importance to the English Legal System. But it is a long document which it is extremely hard to summarize.

The background – as discussed in Chapter 8 of the book – is that while many of Lord Woolf’s reforms to the civil justice system appear to have worked well, he did not secure a hoped-for reduction in the costs of going to court. As a consequence it is suggested that ‘access to justice’ – which was what Woolf was hoping to promote – may actually have been reduced. There is evidence that costs of litigation have risen because of the emphasis, in Woolf, of earlier disclosure of the issues in disputes required by the procedural protocols.

Any attempt to reduce costs face significant challenges. First, Treasury policy on court fees – that the Court Service should be broadly self-financing – has led to significant increases in court fees. Although there is some research evidence that court fees are not as significant deterrent to litigants as might be expected (Moorhead, 2007, What’s costs got to do with it? Available at http://www.justice.gov.uk/publications/research280607.htm) common sense suggests that the higher the fee, the more likely will litigants be deterred.

Second, lawyers want their work to be fairly (if not generously) rewarded. The bottom line is that if law firms make losses, they go out of business. Jackson found, however, that in many situations – particularly where the sums of money in dispute were relatively small – that costs charged by law firms had become disproportionate to the amounts in dispute.

Jackson also accepted, however, that a number of existing rules on costs – particularly relating to the indemnity principle (that the loser pays the winners costs) – were also a deterrent. He recommended that the indemnity rule be abandoned.

Jackson was convinced that, to achieve proportionality between what was at stake and the costs of arguing about what was at stake, there should be much greater reliance on the use of fixed costs in the fast track. In categories of litigation where it was not possible to set fixed costs, there should be a cap set as to the amount of costs that would have to be paid. A new Costs Council should be established to review these and related costs issues.

Jackson also wanted to see greater use of ‘before the event’ legal expenses insurance; abandonment of conditional fee agreements and the introduction of contingency fees (accompanied by a general uplift of around 10% in the awards of damages for personal injury).

In some areas – notably housing – Jackson adopted Lord Woolf’s view that any reform of costs had to be linked to reform of the underpinning law.

More generally, there should be greater emphasis on the use of different forms of alternative dispute resolution.

Implementation of these recommendation implies further changes in the culture of litigation which the Woolf reforms began. They will obviously take time.

As first steps, the government  announced a consultation on costs in defamation cases.  On 3 March 2010 the government stated that success fees under CFAs in defamation cases would be limited to 10%.

On 17 March 2010, the Judicial Executive Board announced the creation of a Judicial Steering Group to take implementation of Jackson forward. (see http://www.judiciary.gov.uk/about_judiciary/cost-review/index.htm).

I will keep you posted on developments as they emerge.

The Government has just launched a consultation on whether the upper age limit for jurors (currently 70) should be raised. It is argued that with people living longer and more healthy lives this might be something older people would like to do. I must say this seems a good idea to me. To have your say go to http://consultations.cjsonline.gov.uk/Default.aspx?conid=2 where you can submit your view direct, on line. The Consultation runs till mid June 2010