Archive for March 2011
On 31 March 2011, the Review of Family Justice published its interim report, setting out a large number of recommendations for changing current procedures and practices relating in particular to decisions on children.
The interim reports reasserts the fundamental principle of the Children Act 1989, that decisions must be in the ‘best interests of the child’. But the Review argues that the present system means inordinate delay – ‘shocking’ is the word they use; is very expensive both for the state and the individual families concerned; and often leads to increased conflict within the family.
The headline recommendations, which are now out for public consultation (until the end of June 2011), are set out in the following (extracted from the MoJ Press Release):
A simpler system to deliver an improved service:
- A new Family Justice Service led by a National Family Justice Board, drawing the key functions of existing agencies together and seeing children and families all the way through the justice system with greater support and more efficiently.
- Local Family Justice Boards to replace the existing plethora of arrangements.
- A unified family court system, streamlining services to replace the current three-tier system, creating more flexibility for family hearings.
- Specialist judges who hear cases from start to finish to ensure consistency and confidence in the system.
- Investment in systems to manage cases and to give information about how family justice operates.
- Court social work services should form part of the Family Justice Service, subsuming the role currently performed by Cafcass (Cafcass Cymru would continue to provide these services in Wales as this is a devolved function).
Public law (protecting children and taking them into care) procedures that deliver more quickly for children:
- The welfare of the child should remain paramount in law, as at present. Courts should focus on the core issues that are most important to the welfare of the children.
- A bespoke timetable for resolving each child’s situation should be established within a maximum allowed time limit for all cases to minimise the damage caused by uncertainty.
- Less reliance on unnecessary expert reports which can cause delay, when these are not in the best interests of the child.
- Measures to simplify processes and help manage cases better, including support for judges to manage cases more tightly.
In Private law cases, a simpler service for families which are separating, aimed at helping them to focus on their children and to reach agreement, if possible without going to court:
- A statement inserted into law to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.
- use of Parenting Agreements to bring together arrangements for children’s care after separation, focusing on where the child spends time rather than ‘contact’ and ‘residence’ and reinforcing the importance of a relationship with grandparents and other relatives and friends who the child values.
- a single online and phone help point to make it simple for people to decide the most appropriate way forward.
- assessment for mediation followed by access to Separated Parents Information Programmes and dispute resolution to help separating parents understand the impact of conflict on the children and to reach agreement.
a court process that supports cases where there are serious welfare concerns and allows for cases to be dealt with according to complexity.
The full documentation is at http://www.justice.gov.uk/publications/family-justice-review.htm
On the same day that the Government announced how it would amend rules on costs, it also announced that it is consulting on important changes to the organisation and practice of the civil courts. At the heart of the new proposals, there is greater emphasis on fixed costs in litigation; more extensive use of mediation; better use of court buildings (including closure of many courts); increased use of the small claims track; ensuring that only very high value civil cases can be started in the High Court; and creating more flexibility in the ways in which cases are handled in county courts. There are also proposals relating to better enforcement of decisions.
According to the Consultation Paper , the Government’s proposals are based around the following principles:
Proportionality – that disputes should be resolved in the most appropriate forum, so that processes and costs are commensurate with the complexity of the issues involved.
Personal Responsibility – that wherever possible citizens should take responsibility for resolving their own disputes, with the courts being focused on adjudicating particularly complex or legal issues.
Streamlined Procedures – that procedures should be citizen and business friendly with services focussed on the provision of timely justice.
Transparency – to ensure that there is clear information on the dispute resolution options open to citizens so that they can take action early, make informed decisions and more readily access the most appropriate services
To achieve these objectives, the paper proposes:
- Introducing a simplified claims procedure on a fixed costs basis, similar to that for road traffic accidents under £10,000, for more types of personal injury claim; exploring the possibility of extending the framework of such a scheme to cover low value clinical negligence claims; and examining the option of extending the upper limit of those simplified claims procedures to £25,000 or £50,000;
- Introducing a dispute management process and fixed recoverable costs by specific case types up to £100,000;
- Increasing the upper jurisdiction threshold for small claims (excluding personal injury and housing disrepair) from £5,000 to £10,000, £15,000 or £25,000;
- Requiring all cases below the small claims limit to have attempted settlement by mediation, before being considered for a hearing;
- Introducing mediation information/assessment sessions for claims above the small claims limit;
- Encouraging greater use of online dispute-resolution services;
- Providing a simpler and more effective enforcement regime; and testing the public appetite for further enforcement reforms and jurisdictional changes;
- Introducing a number of jurisdictional changes in the civil courts, including the introduction of a single county court jurisdiction for England & Wales.
Alongside these proposals, the Government says it is improving the information offered to members of the public through enhanced online content available through Directgov, the Government’s central website for the citizen. New content is designed to inform the public about the full range of civil dispute resolution options available to them, including mediation, use of Ombudsmen, industry arbitration schemes and where appropriate, use of statutory regulators.
It also aims to demystify the court process itself, rendering it more navigable to the public, and provide upfront information and warnings about the time and costs involved in pursuing a path of what could be protracted litigation.
This new resource also includes a series of short audio-visual clips, which explain what happens at a court hearing; what happens at mediation; and what may happen as a result of a judgment being enforced. They also include short pieces to camera which help to explain the benefits of mediation over litigation, as well as testimonies from members of the public who have used the mediation process.
Full details are in http://www.justice.gov.uk/consultations/solving-disputes-county-court.htm
The consultation runs until the end of June 2011.
In November 2010, I noted here that the Government had issued a consultation on reforming some of the rules relating to fees and costs in civil litigation, which had been recommended by Lord Justice Jackson. The Government announced on 29 March 2011, that in the light of response to the consultation, it intends to make a number of important changes to the relevant rules and regulations. The timetable for implementation is not stated; as some of the changes need legislation, this will not happen overnight. These decisions also need to be seen in the light of further proposals for changes to the civil justice system, announced on the same day, and which are considered in my next blog entry.
The changes are detailed and difficult to summarise. In outline, the Government intends to :
- Abolish the general recoverability of the Conditional Fee Agreement success fee from the losing side. (This proposal returns the position to when CFAs were first allowed in civil litigation in England and Wales in the 1990s.) In future CFA success fees will be paid by the CFA funded party, rather than the other side. The Government thinks that this change will give individual CFA claimants a financial interest in controlling the costs incurred on their behalf.
- Abolish the general recoverability of after the event (ATE) insurance premiums. In future any ATE insurance premium will be paid by the party taking out the insurance, rather than the other side. Again, this returns the position to that which existed in the 1990s.
- Introduce a package of associated measures recommended by Lord Justice Jackson (set out below). (The one exception relates to expert reports in clinical negligence cases. These expert reports can be expensive. There need to be a means of funding them to ensure that meritorious claims can be brought by those who cannot afford to pay for these reports upfront. To address this, the Government intends to have a tightly drawn power to allow recoverability of the ATE insurance premiums to cover the cost of expert reports only in clinical negligence cases. The details would be set out in regulations.)
The associated measures in the package
- In tort cases, there will be an increase of 10% in non-pecuniary general damages which compensate for pain, suffering and loss of amenity.
- Claimants who have been compensated for personal injury should have their damages protected from having too much deducted by their lawyer as a success fee. In personal injury cases, there will be a cap on the amount of damages that may be taken as a success fee. The cap will be set at 25% of the damages other than those for future care and loss. This will help protect claimant’s damages generally, and will specifically protect those relating to future care and loss. Special damages for future care and loss, which can run into many millions of pounds in the most catastrophic injury cases will be protected.
- The maximum success fee that a lawyer may agree with a client under a CFA will remain at 100% of base costs. However, in personal injury cases this would be subject to the 25% cap on damages (other than those for future care and loss) as described above.
- The recoverability of the self-insurance element by membership organisations, equivalent to the ATE insurance premium, will also be abolished. Some trade unions and other membership organisations self-insure in this way.
- A regime of Qualified One Way Costs Shifting (‘QOCS’) will be introduced for personal injury cases, including clinical negligence. This means that an individual claimant is not at risk of paying the defendant’s costs should the claim fail (except in limited prescribed circumstances), but that the defendant – which typically in personal injury cases is a relatively well-resourced body – would have to pay the individual claimant’s costs should the claim succeed. The exceptions will be: (i) on behaviour grounds – where the claimant has acted fraudulently, frivolously or unreasonably in pursuing proceedings – so a reasonable claimant will not be at risk of paying the other side’s costs on behaviour grounds; and (ii) on financial means grounds – only the very wealthy would be at risk of paying any costs. The Government will continue to discuss with stakeholders how the rules should be drafted, including whether any minimum payment to a successful defendant’s costs should be payable by the losing claimant in order to prevent speculative claims. QOCS will not be extended beyond personal injury at this stage, so the normal costs shifting rules will continue to apply in other cases.
- Part 36 of the Civil Procedure Rules (offers to settle) will be amended to equalise the incentives between claimants and defendants to make and accept reasonable offers. This will apply to all civil cases, and the Government will discuss the details with stakeholders in due course.
- Damages-based agreements (contingency fees) will be allowed in civil litigation. DBAs are another type of ‘no win no fee’ agreement, but the lawyer’s fee is related to the damages awarded, rather than the work done by the lawyer. DBAs will provide a useful additional form of funding for claimants, for example in commercial claims. Successful claimants will recover their base costs (the lawyer’s hourly rate fee and disbursements) from defendants as for claims, whether funded under a CFA or otherwise, but in the case of a DBA, the costs recovered from the losing side would be set off against the DBA fee, reducing the amount payable by the claimant to any shortfall between the costs recovered and the DBA fee. DBAs will be subject to similar requirements for parties to the agreement as for CFAs. For example, the amount of the payment that lawyers can take from the damages in personal injury cases will be capped (at 25% of damages excluding for future care and loss).
- A new test of proportionality in costs assessment will be introduced. This will mean that only reasonable and proportionate costs may be recovered from the losing party. This would act as a long stop to control the costs of activity that is clearly disproportionate to the value, complexity and importance of the claim.
- The prescribed rates which successful litigants in person may recover from losing opponents will increase in line with inflation since they were set. These rates have not been increased since the mid-1990s. Business representatives in particular have supported this change, for those cases in which business people represent themselves in court.
Links to all the details can be found at http://www.justice.gov.uk/consultations/jackson-review-151110.htm
The Government has just announced the appointment of an Independent Commission to examine the case for the adoption of a UK Bill of Rights – which would effectively replace the Human Rights Act 1998.
The Human Rights legislation, and the role of the Supreme Court in interpreting the scope Convention rights, have been getting a hostile press and comment in Parliament recently. Two issues have hit the headlines: the question of whether prisoners should in some circumstances have the right to vote, and whether those registered on the sex offenders list should ever have the right to challenge a decision that they be on the list. Debate on both these issues seems to have been characterised by a fair degree of ignorance about what the Court was actually ruling. Their judgments were no way as apocalyptic as their critics were claiming. (By contrast, their judgements on the ability of local authority and social housing providers effectively to manage their estates – which are likely to have considerable financial implications for social landlords – have hardly been considered at all.)
In this context, the establishment of the Commission – with the clear instruction to build on the current position, rather than row back from it – is an important development. They will not report until end 2012, but I will keep an eye on developments here.
The terms of reference of the Commission are:
To investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties.
To examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties.
To provide advice to the Government on the ongoing Interlaken process (a separate process being run within the Council of Europe) to reform the Strasbourg court ahead of and following the UK’s Chairmanship of the Council of Europe.
To consult, including with the public, judiciary and devolved administrations and legislatures, and aim to report no later than by the end of 2012.
The members of the Commission can be found at
In this podcast, I talk to Professor Cheryl Thomas, of University College London. She is co-director of the Judicial Institute, a new research unit established in November 2010. In this podcast, Professor Thomas talks about the ambitions for the Institute, why it was set up, and what it is currently doing. She particularly stresses the courses offered by the Institute to encourage lawyers to think about applying for judicial appointment.
You can hear the podcast at http://fdslive.oup.com/www.oup.com/orc/resources/law/els/partington13_14/student/podcasts/CherylThomas.mp3
More information about the Institute is at https://www.ucl.ac.uk/laws/judicial-institute/
After all the argument in Parliament – particularly in the House of Lords, which used unprecedented late night sittings to try and derail the bill – the Parliamentary Voting System and Constituencies Act was finally passed into law in mid-February. The Act allows for a referendum on changing to an ‘alternative vote’ system for general elections to be held on 5 May 2011 and the redrawing of constituency boundaries to reduce the size of the House of Commons from 650 seats to 600.
It cannot be said that, to date, there has been much public debate on the issue. Both the ‘yes’ and ‘no’ camps have launched their campaigns, and there has been some comment in the serious press on the arguments for and against.
What do you think? Will AV make the elected Parliament more representative of public opinion? Or will it simply dilute the individual’s voting power?
Have a look at the Electoral Reform Society site: they are strongly in favour, but this article discusses the issues clearly. Do you agree with them? See http://www.electoral-reform.org.uk/article.php?id=5
It may well be that the reduction of seats in the House of Commons will ultimately have a bigger impact on its party political make-up than AV – even if AV gets the nod in the May referendum.
In the book I mention the importance of improving public knowledge about law and the legal system, and the work being undertaken by PLENet, the Public Legal Education Network. See http://www.plenet.org.uk/ for information about the network.
In this podcast, I talk to Martin Jones, PLENet’s director, about its work, and the initiatives the network is taking. He emphasises that the focus is on giving people the confidence to deal with the legal system in a positive and constructive way, particularly those who may not have been involved with the law before. He also warns that public expenditure cuts may restrict the ability of PLENet to continue its programme of work.
Listen to Martin Jones at http://fdslive.oup.com/www.oup.com/orc/resources/law/els/partington13_14/student/podcasts/Jones.mp3