Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for September 2017

Review of Civil Litigation Costs: Supplementary Report – Lord Justice Jackson

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When Lord Woolf started out on his major programme of reform of the Civil Justice system – which came into effect with the introduction of new Civil Procedure Rules in 1999 – he was concerned about a wide range of issues. The most intractable of the problems he identified was how could the costs of litigation be kept proportionate to the subject matter and value of the dispute.

While there was considerable agreement that many of the changes he recommended had worked well, his proposals on the control of costs had not been as successful as they should have been.

Thus in 2009, Lord Justice Jackson was asked to undertake more work on the costs of civil litigation. His first report on the issue was published in 2010. (Noted in this blog in March 2010)

In 2016, Jackson was asked to revisit this topic, on which he has now published (July 2017) this supplementary report.

As Jackson notes:

In England and Wales, the winning party in litigation is entitled to recover costs from the losing party. The traditional approach has been that the winner adds up its costs at the end and then claims back as much as it can from the loser. That is a recipe for runaway costs.

He therefore argues (as indeed he did in his first report) that there are two fundamental ways to prevent runaway costs.

(i) a general scheme of fixed recoverable costs , i.e. those costs that the winning party can claim from the losing party;

(ii) imposing a budget for each individual case (“costs budgeting”)

Although fixed recoverable costs (FRC) had been introduced for  limited categories of cases before he reported in 2010, he recommended that FRC should be introduced for all fast-track cases. In its response to his first report, the Government did not at the time go that far.

The introduction of costs budgeting was also regarded initially by the legal profession as very controversial, and was not universally welcomed. In this later report, however, evidence from witnesses to his review stated that the system for costs budgeting had now settled down and was widely seen to be working pretty well.

At the heart of this review, there are the following recommendations:

  1. FRC should be introduced for all fast track cases. The amount of costs which are recoverable are laid out in a grid. Different sums are permitted for different stages of proceedings.
  2. Above the fast track, Jackson recommends the creation of a new ‘intermediate’ track for certain claims up to £100,000 which can be tried in three days or less, with no more than two expert witnesses giving oral evidence on each side. The intermediate track will have streamlined procedures and its own grid of FRC.
  3. Clinical negligence claims are often of low financial value, but of huge concern to the individuals on both sides. The complexity of such cases means that they are usually unsuited to either the fast track or the proposed intermediate track. For these Jackson recommends that the Department of Health and the Civil Justice Council should set up a joint working party with both claimant and defendant representatives to develop a bespoke process for handling clinical negligence claims up to £25,000. That bespoke process should have a grid of FRC attached. This scheme will capture most clinical negligence claims.
  4. In relation to business cases, Jackson states that it is essential that small and medium-sized enterprises  should have access to justice. The Federation of Small Businesses argued that there should be an FRC regime for commercial cases up to £250,000; the costs levels must be reasonable; they must balance incentives and “reduce the costs of going to law for small businesses”; there must be rigorous case management of cases subject to this regime; and there must be investment in modern IT systems to speed up court processes. Jackson does not think that all business cases require FRC up to the level suggested by the Federation. Instead he recommends a voluntary pilot of a ‘capped costs’ regime for business and property cases up to £250,000, with streamlined procedures and capped recoverable costs up to £80,000. If the pilot is successful, the regime could be rolled out more widely for use in appropriate cases.
  5. Jackson recommends measures to limit recoverable costs in judicial review claims, by extending the protective costs rules which are currently reserved for environmental cases. As he observes: Citizens must be able to challenge the executive without facing crushing costs liabilities if they lose.
  6. In relation to costs management, the budgeting process will continue to apply to proceedings falling outside the scope of FRC. One problem is that costs management cannot currently apply to costs incurred before the costs management process takes place. Jackson thinks that at some point further consideration may need to be given to setting a limited to these incurred costs, but that should not be considered further at this stage.

It is not known what the response of Government to these proposals will be. Any changes would be subject to further consultations.

The 2017 Jackson review may be accessed at https://www.judiciary.gov.uk/wp-content/uploads/2017/07/fixed-recoverable-costs-supplemental-report-online-2-1.pdf

 

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Written by lwtmp

September 29, 2017 at 3:35 pm

The treatment of, and outcomes for, Black, Asian and Minority Ethnic (BAME) individuals in the criminal justice system: the Lammy Review

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At the beginning of 2016, David Lammy MP was asked by the then Prime Minister David Cameron to review the workings of the criminal justice system, with the object of seeing whether the system worked fairly, in particular in relation to BAME individuals. (The review was noted in this blog in February 2016; its interim findings were noted here in November 2016)

The final report of the review was published in September 2017.

The bare statistics tell a familiar story. Thus the study found, for example:

  • the fact that BAME individuals are disproportionately represented in the criminal justice system costs the taxpayer at least £309 million each year;
  • the proportion of BAME young offenders in custody rose from 25% to 41% between 2006 and 2016, despite the overall number of young offenders falling to record lows;
  • the rate of Black defendants pleading not guilty in Crown Courts in England and Wales between 2006 and 2014 was 41%, compared to 31% of white defendants. (This means they lose the possibility of reduced sentences and it raises questions about their level of trust in the system.);
  • the BAME proportion of young people offending for the first time rose from 11% in 2006 to 19% a decade later;
  • there was an identical increase in the BAME proportion of young people reoffending over the same period.

Lammy looked at what happens in a number of other countries to see whether we could learn from experience elsewhere.

Two specific examples may be noted.

  1. Taking inspiration from youth justice in Germany, Lammy argues that rigorous assessments of a young offender’s maturity should inform sentencing decisions. Those judged to have low levels of maturity could also receive extended support from the youth justice system until they are 21.
  2. He also called for ‘Local Justice Panels’ to be established, taking inspiration from New Zealand’s Rangatahi courts, where local people with a direct stake in a young offender’s life are invited to contribute to their hearings. These panels would normally deal with first-time offenders given community sentences, include key figures such as teachers or social workers, and hold local services to account for a child’s rehabilitation.

Lammy made a number of innovative recommendations for judges, prosecutors and prisons.

For example, he proposed that a ‘deferred prosecution’ model  be rolled out, allowing low-level offenders to receive targeted rehabilitation before entering a plea. Those successfully completing rehabilitation programmes would see their charges dropped, while those who did not would still face criminal proceedings. (Such a scheme has already been piloted in the West Midlands, with violent offenders 35% less likely to reoffend. Victims were also more satisfied, feeling that intervention before submitting a plea was more likely to stop reoffending.)

He recommended that all sentencing remarks made by judges in the Crown Court should be published. He argued that this could help to make justice more transparent for victims, witnesses and offenders. It would also  start to address the ‘trust deficit’ between BAME individuals and the justice system, which Lammy argues  has contributed to Black and Asian men and Asian women being over 50% more likely than their White counterparts to enter a not guilty plea.

He also argues the UK should learn from the US system for ‘sealing’ criminal records, claiming ex-offenders should be able to apply to have their case heard by a judge or independent body, such as the Parole Board, where they could prove they have reformed. The judge would then decide whether to ‘seal’ the record, having considered factors such as time since the offence and evidence of rehabilitation. If the decision goes the applicant’s way, their record will still exist, but the individual would not need to disclose it and employers would not be able to access it. Lammy hoped this would help the people affected to become more employable.

Lammy accepts that there are other wider social issues that must be addressed as well; but he argues that the recommendations he makes could do much to build greater trust in the criminal justice system, reduce reoffending and improve outcomes for victims.

Whether or not these recommendations will lead to actual changes on the ground is too early to say. The fact that two Prime Ministers strongly supported the review might suggest that there would be some political impetus for follow-up. But, given other political priorities, I would not expect a rapid response from Ministers.

The Press Release, with links to the report can be found at https://www.gov.uk/government/news/lammy-publishes-historic-review

 

 

 

 

 

 

 

 

 

 

 

 

 

Written by lwtmp

September 29, 2017 at 9:58 am

Administrative Justice in Wales and Comparative Perspectives

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Written by lwtmp

September 23, 2017 at 11:22 am

New journal article published: Mapping current issues in administrative justice: austerity and the ‘more bureaucratic rationality’ approach

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Written by lwtmp

September 19, 2017 at 9:24 am

Where do we need to go with research in administrative justice?

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Written by lwtmp

September 18, 2017 at 9:57 am

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