Archive for February 2015
Online Dispute Resolution – proposals from the Civil Justice Council
The Civil Justice Council has just published an important report on the potential for the use of new processes to deal with disputes in small value claims, under £25,000.
In summarey, the report states:
‘Our principal recommendation is that HM Courts & Tribunals Service (HMCTS) should establish a new, Internet-based court service, known as HM Online Court (HMOC). We recommend that HMOC should be a three-tier service.
- Tier One of HMOC should provide Online Evaluation. This facility will help users with a grievance to classify and categorize their problem, to be aware of their rights and obligations, and to understand the options and remedies available to them.
- Tier Two of HMOC should provide Online Facilitation. To bring a dispute to a speedy, fair conclusion without the involvement of judges, this service will provide online facilitators. Communicating via the Internet, these individuals will review papers and statements and help parties through mediation and negotiation. They will be supported where necessary, by telephone conferencing facilities. Additionally, there will be some automated negotiation, which are systems that help parties resolve their differences without the intervention of human experts.
- Tier Three of HMOC should provide Online Judges – full-time and part-time members of the Judiciary who will decide suitable cases or parts of cases on an online basis, largely on the basis of papers submitted to them electronically as part of a structured process of online pleading. This process will again be supported, where necessary, by telephone conferencing facilities.
2.5
The establishment of HMOC will require two major innovations in the justice system of England and Wales. The first is that some judges should be trained and authorized to decide some cases (or aspects of some cases) on an online basis. The second innovation is that the state should formally fund and make available some online facilitation and online evaluation services.
To ensure the implementation of our principal recommendation, we propose three supporting recommendations:
• that HMCTS introduces an ODR stream into its current programme for the reform of civil, family, and tribunal work, and allocates a modest fraction of its £75 million annual reform budget (over five years) for the establishment of HMOC;
• that all political parties offer in-principle support for HMOC, as a viable way of increasing access to justice and reducing the cost of the resolution of civil disputes; and
• that the Civil Justice Council invites the ODR Advisory Group to commence a new phase of work, collaborating with HMCTS and the Judiciary in formally piloting ODR, designing HMOC, and raising awareness of this new approach to the handling of civil disputes.
Although our terms of reference are restricted to civil claims under the value of £25,000, we believe that that the jurisdiction of HMOC should also be extended to suitable family disputes and to appropriate cases that come before today’s tribunals.’
It seems to me that developments on these lines are inevitable, for two particular reasons:
First, there are already in existence in the UK a number of dispute resolution procedures that are efficient and very cost effective using modern IT. Examples mentioned in the report include the Financial Services Ombudsman scheme, the Traffic Penalty Tribunal scheme, and Resolver.co.uk. However the majority of live examples are currently operating abroad. It is a pity that other similar procedures already operating in UK are not mentioned – for example the tenancy dispost dispute resolution schemes, all of which operate online and are free to appellants. (I am Chair of the Board of one of the companies offering this service.)
Second, the EU is in the final stages of ensuring that new forms of consumer ADR and ODR will be in place in member countries in the near future.
However, I also think more work needs to be done on considering the sources of the resources needed for running the service. Will this all come from the state? from users? from insurance companies needing to get disputes resolved? from industry bodies?
It also needs to be asked who the adjudicators should be. The report talks about members of the judiciary. But large numbers of disputes do not involve complex questions of law – they depend on the finding of facts based on evidence provided. It is not self evident to me that the only people capable of reaching sensible conclusions are judges. Indeed the existing schemes demonstrate that this is not the case.
Further development will be noted here as they occur.
Meantime, the CJC report is available at http://www.judiciary.gov.uk/reviews/online-dispute-resolution/odr-report-february-2015/
Supporting Heroes – the new law
On 30 July 2014, I summarised the Government’s proposals for ‘supporting heroes’ contained in the Social Action, Responsibility and Heroism Bill 2015. The proposals have now completed the Parliamentary process, and the Social Action, Responsibility and Heroism Act 2015 is now on the statute book.
To recap, the Act provides that when dealing with negligence claims or claims for breach of statutory duty the courts should consider:
- whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members (section 2) ;
- whether the person , in carrying out the activity giving rise to the claim , demonstrated a generally responsible approach towards protecting the safety or other interests of others (section 3) ;
- whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to his or her own safety or other interests (section 4).
The Act will come into force on a date to be announced later.
Review of Efficiency in Criminal Proceedings
The results of the inquiry by Lord Justice Leveson into the efficiency of criminal proceedings was published in January 2015.
His task was to come up with recommendations that could be implemented without legislative change.
In summary, he recommends:
- the greater use of video and other conferencing technology across the system (including courts and prisons) particularly featuring remote hearings in the Crown Court, which would lead to a better service for all those involved and reduce both delay and cost (para. 40-50);
- facilitating the use in court of evidence gathered by police on video cameras mounted on their bodies or helmets (para. 58) and a streamlined approach to other evidence which has been captured electronically, such as interviews of child witnesses (achieving best evidence) and interviews with defendants (para. 250);
- more flexible opening hours in magistrates’ courts to accommodate those who cannot attend hearings during normal office hours (para. 54);
- tighter case management by judges, including, in appropriate cases, the provision of timetables for evidence and speeches (para. 274, 281);
- that contracts awarded to those responsible for delivering prisoners to court should require greater efficiency so that prisoners appear on time and do not delay proceedings (para. 214).
- that there should be funding available to pay for the inevitable cost of changing from the current systems to the more efficient ones (para. 320).
There is also an interesting chapter (chapter 10) on other changes that might be contemplated, but on which, because they would require legislation, he does not make recommendations. These include the controversial question of whether the ways in which defendants can opt for jury trial should be changed.
The full report can be found at http://www.judiciary.gov.uk/publications/review-of-efficiency-in-criminal-proceedings-final-report/
Family Justice Research
Big changes are in progress in the family justice system. Researchers, both within government and outside, are engaged in a number of research projects designed to examine how the family justice system is working. Indeed, a number of recommendations in the Family Justice Review related to the need to better share relevant research and good practice throughout the family justice system. The government accepted these recommendations and agreed to work with the Family Justice Board to help provide social research evidence to family justice professionals and wider stakeholders.
The Family Justice Research and Analysis team in Ministry of Justice Analytical Services are supporting this through their Family Justice Research Bulletin. The 5th volume of the Bulletin was published in January 2015. The 4th is also available on-line but numbers 1-3 are not. It is planned that further bulletins will be published roughly every six months.
Given the controversies that surround the operation of the family justice system, the undertaking and publication of high quality empirical research is obviously necessary to ensure that the system is working as intented.
One of the principal findings in the present edition is that public knowledge of what is happening to the family justice system is very sketchy; and that government hopes for more use of mediation are still thwarted by a lack of willingness of parties to participate in mediation. There also seems to be a lack of understanding that while legal aid for family matters has been cut back, it is still available for mediation.
Those interested in the research discussed in the bulletin can find full details at https://www.gov.uk/government/publications/family-justice-research-bulletin-5-january-2015
Bulletin 4 is at https://www.gov.uk/government/publications/family-justice-research-bulletin-4-mar-2014
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 