Archive for February 2019
What goes on in the Commercial Court?
It used to be the case that the work of the Commercial Court and the Admiralty Court (now constituent parts of the Business and Property Courts of England and Wales) was the subject of an Annual Report. But there has been no such report for a number of years.
The lead judge of the Court, Mr Justice Teare, has now decided that the practice of providing Annual Reports should be revived. In February 2019, the first of the new series of reports, covering the year April 2017-March 2018, was published.
Although the number of cases coming before both the Commercial and Admiralty Courts is not that high, the value of these cases are often substantial. And a high percentage of the cases involve issues which have arising outside the UK. This reflects the fact that London is seen in many jurisdictions as the place where commercial disputes can and should be resolved – in turn reflecting the expertise of the major law firms based in London.
The report is available at https://www.judiciary.uk/wp-content/uploads/2019/02/6.5310_Commercial-Courts-Annual-Report_v3.pdf
The Modernisation of Tribunals – report from the Senior President of Tribunals
When he published his Annual Report in 2018, the Senior President of Tribunals promised that there would be a second report, devoted to the issue of the reform of the tribunal system, in the context of the overall courts and tribunals modernization programme.
This second report has now been published. It reports on the outcome of a consultation and a series of engagement meetings which took place around the country under the general heading of Judicial Ways of Working.
It is not an easy report to summarise, but the headline conclusions are:
- Judges will shape and lead reform in each of our jurisdictions to ensure that the rule of law is safeguarded and, in particular, that effective access to justice is improved.
- New process or the use of digital tools should never lead to less fair procedures or less effective access to justice.
- Judicial decision making should be no less open to public scrutiny than it is at present, that is, the careful balance we strike between open justice and the privacy of an individual’s personal information is maintained.
- We must ensure that systems are designed to meet the needs of the people who use them, for example how digital access is facilitated for the digitally excluded (a new service known as Assisted Digital). Different types of assistance are currently being tested.
- Tribunals led the way in the use of Case Officers before the modernisation programme began. A new generation of tribunals case workers has been trialled as part of the modernisation programme and a career structure has been developed for all ‘Authorised Officers’. Different models with differing levels of responsibility will work in each Tribunal. How and where authorised officers are used will be determined by each jurisdiction but subject to the overall protection of permissions contained in Rules and Practice Directions.
- Implementing change is a specialist task. There will be identified HMCTS managers and teams who are responsible for delivering successfully piloted projects in each jurisdiction. The Delivery of Change will depend on the agreement of an ‘end-to- end’ model for each jurisdiction.
- There is work to be done to agree the important features of the hardware and software that will be used to support us.
- Necessary funding for Digital Training has been obtained. Its provisions will be overseen by the Judicial College and judge trainers. The training will be available to judges and non-legal members and will include opportunities for authorised officers as well.
- Where video hearings are to be enhanced and fully video hearings tested, great care is being taken to make sure the system is designed with the needs of judges and users front and centre.
- The work towards a Tribunals Estates Strategy which considers each building in the Tribunals estate is an immense task but is nearly complete. The strategy and the principles which will determine how the leasehold estate is managed and how we plan for the future is expected to be agreed by February 2019. There is acknowledgement that some judges and members are currently in unsuitable accommodation; there is acceptance that provision for the Tribunals should in no way be inferior to that provided for the courts and a real desire to ensure that modernisation secures improvements to the working environment.
This is adapted from the summary in Annex E of the report, which is available at https://www.judiciary.uk/wp-content/uploads/2019/01/6.5332_JO_Modernisation-of-Tribunals-2018-Report_v3.pdf
Judicial Ways of Working
Administrative Justice Council – new website
In 2019, the Administrative Justice Council launched its new website. Go to https://ajc-justice.co.uk/ for further information.
Understanding Courts – a report from JUSTICE
In January 2019, the Human Rights Group JUSTICE published the report, Understanding Courts. It was the work of a group chaired by Sir Nicholas Blake.
The central message of the report – which builds on other reports published over the last few years by JUSTICE – is that going to court can be a confusing, intimidating and disempowering experience for lay people, whether as parties, witnesses or jurors. This is only compounded for people who are unrepresented, and for otherwise vulnerable people.
This report argues that, in the context of the current programme of reform of courts and tribunals, lay people should be put at the heart of court processes. The objective is to encourage meaningful access to justice through effective participation.
There are 41 recommendations in the report which focus on what effective participation should mean in practice. In broad outline, the key issues are that
- lay people should be informed about what will happen at their hearing through advance information provided by multiple means;
- court professionals should recognise that lay people should be their primary focus and adapt their approach accordingly;
- case management should ensure that lay people understand processes and assists with that understanding;
- legal jargon and confusing modes of address should be avoided, using plain English alternatives;
- there needs to be a change in professional culture that can otherwise exclude lay people;
- there should be appropriate adaptations to enable participation by children and those with a disability; and
- there should be support for all users who need it.
It is an interesting report, which deserves to be taken seriously. But I have the specific comments to make.
1 Tribunals have long espoused the key principles set out in this report. There is mention in this report that the user focus of tribunals needs to be brought into the court system. If this report has the effect of stopping (court) judges regarding tribunals as second class courts, rather than as first class dispute resolution forums, then it will have served a useful purpose.
2 There are many recommendations in the reports about ensuring that information provided by courts is user-friendly and up to date. This again is welcome but this is a message that has been developed on many occasions over recent years. Now is the time to get down to the hard work of developing user-friendly information and forms that really do enable individuals to improve their access to justice – using the potential of IT to the full.
3 If the change of culture recommended in the report is to be fully realise this has a significant implication for the training, not just of the judiciary, but also of court staff and other legal professionals. The recent spate of press stories about bullying judges is extremely worrying – it is hard to see how a bullying judge would have the empathy or patience to adopt the approach outlined in this report. Judges already in post will need as much training in the interpersonal skills required to change court culture as those coming new to the role.
The full report is available at https://justice.org.uk/our-work/areas-of-work/what-is-a-trial/
Resolving Housing Disputes: proposal for a Housing Complaints Resolution Service
The last two blog items have considered proposals for making the disputes resolution activities of the county court and the property tribunal in relation to housing matters work more coherently. But for many people, the very idea of going to a court (or tribunal) is daunting.
Increasingly, governments use non-court avenues for redress, where this can be done cost-effectively and in a way which promotes access to justice – in the broad sense of access to a service that will take an independent look at a dispute and resolve it. The outstanding example is in the field of financial services, where the Financial Services Ombudsman offers a dispute resolution service across the financial services sector.
In relation to housing disputes, the problem is rather different. There are a number of different complaints handlers – so many, in fact, that members of the public often don’t know which route to resolution to take.
The Government has been concerned about this issue for sometime. In January 2019, the Secretary of State announced that he would be bringing forward legislation to create a single Housing Complaints Resolution Service which will become the single port of entry – for both owner occupiers and renters – with disputes they wish to have resolved.
From broken boilers to cracks in the wall, the new Housing Complaints Resolution Service will potentially help millions by providing a straight-forward way of getting help when faced with unresolved disputes about problems with their home – such as repairs and maintenance.
One feature of the new service is that all Private Landlords – who currently do not have to belong to a redress scheme – will be required to sign up – with penalties for failure to do so.
In addition the government has announced that there will be a New Homes Ombudsman, to resolve complaints about the condition of new homes.
These changes will not happen overnight – they will require legislation. The details of the Housing Complaints Resolution Service will be developed with a new Redress Reform Working Group made up of representatives from across the sector, working with industry and consumers.
I will keep an eye on these developments as the details emerge.
For further detail, including links to background papers see https://www.gov.uk/government/news/james-brokenshire-announces-overhaul-of-broken-housing-complaints-system
Considering the case for a specialist housing court
In November 2018, the Government published Considering the case for a Housing Court: call for evidence. It sought evidence in particular from the judiciary, landlords and tenants to help the government better understand and improve the experience of people using courts and tribunal services in property cases.
It is not hard to think of other groups who might also provide useful evidence, such as lawyers, housing advisers, letting agents and other property professionals.
The Consultation made clear that, included in the ideas being considered was whether there was a case for the creation of a specialist Housing Court.
In its press release, the Government stated that it particularly sought evidence on:
- private landlord possession action process in the county court
- user experience in both the county courts and the First-tier Tribunal for property cases
- case for a new Housing Court
- case for other structural changes such as an extension of the remit of the property tribunal.
Little attention was given to the important question of whether any changes could improve access to justice. There is good evidence that many – both landlords and tenants – with potential legal disputes do not use the courts to resolve those disputes. (In relation to this, the Paper did ask whether better information might be helpful.)
The Consultation Paper indicated that there were two principal options being considered.
Either, changes might be made to the ways in which the courts and first-tier tribunal operated to ensure that between them they could deal with cases more cost-effectively and efficiently. (In essence this covered the same ground as that considered by Judge McGrath in her recommendations to the Civil Justice Council, see this blog previous item).
Or, a specialist Housing Court might be created. (The Consultation did not specifically seek views on the creation of a more broadly based Housing Tribunal on the lines of developments in Scotland. )
The Consultation Period is now closed. Decisions are awaited.
For further information on the Scottish Housing Tribunal see https://www.housingandpropertychamber.scot/
Dealing with housing disputes: proposals from the Civil Justice Council
Housing Law is complex – a large number of statutes attempt to regulate the housing market, in particulat the relationship between landlords and tenants. Housing Law potentially affects both renters (who rent their accommodation on a monthly basis) and leaseholders (who have a long-term interest in the property they live in).
The law has created a vast number of legal rights and responsbilities. It has also created different pathways for the resolution of disputes. In particular, some cases need to be dealt with in the county court, others go to the Property Chamber in the First Tier Tribunal.
One problem with this is that there are circumstances which arise in practice where – in order to fully resolve the dispute – the claimant may need to start proceedings in both the county court and the first tier tribunal. This is obviously wasteful of time and resources – very frustrating for those caught up in an almost Dickensian-like jurisdictional battle.
This is not new; the issue has been acknowledged for some time. The Civil Justice Council has, however, been trying to do something practical to solve the problem. In 2015 it established a working group on property disputes to consider whether access to justice in property disputes could be improved by the deployment of judges to sit concurrently in courts and tribunals. In other words, those appointed as tribunal judges could in relevant circumstances be authorised to sit as county court judges and vice versa.
Following a pilot, Judge Siobhan McGrath, Property Chamber President, in November 2018 published a proposal and recommendations to amend the Civil Procedure Rules and the First-tier Tribunal Procedure (Property Chamber) to reflect this. In her report she stated that her preferred solution was to deploy judges to sit concurrently in the court and the tribunal. The deployment of judges to sit in both the court and the tribunal concurrently would, in Judge McGrath’s view, provide a practical solution to a difficult challenge.
She stated that ‘The concept is supported by the MoJ who have agreed to provide resource to explore rule changes in more detail; to engage with judiciary and the Civil Procedure Rules committee and the Tribunal Procedure Committee and to provide analytics about the practical impact of deployment.’
What the status of this recommendation is is currently no clear; it is likely to have got wrapped up in the consultation on the creation of a Housing Court – which is the subject of a separate blog item.
To see Judge McGrath’s report, visit: https://www.judiciary.uk/wp-content/uploads/2018/11/property-chamber-deployment-project-report-oct2018.pdf
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 