Archive for March 2019
How to develop the use of Alternative Dispute Resolution – Civil Justice Council report
In December 2018, the Civil Justice Council (CJC) endorsed a report from a Working Group chaired by William Wood QC on how the use of ADR might be further encouraged.
The report concludes that it does not currently think that the use of ADR should be made compulsory – a conclusion that some will find disappointing. But the Working Party argues that there is still work to be done to prepare the ground for the possible introduction of compulsion at some future date.
There are three general matters which the Working Party argues should form the basis for a strategy for the development of ADR:
- The awareness of ADR, both in the general public and in the professions and on the Bench;
- The availability of ADR, both in terms of funding and logistics and in terms of quality and regulation of the professionals involved;
- The encouragement of ADR by the Government and Courts.
These are very similar to the issues which the ADR Sub-Committee of the CJC (which I used to chair) identified over 10 years ago.
But the latest report adopts a positive attitude arguing that
- Citizens must be aware that when civil disputes arise there are alternatives to the present choice of capitulation or litigation.
- Citizens must be aware that those alternatives include approaches involving neutral third parties to assist settlement.
- Those neutrals must be available in a practical and affordable form and operate in accordance with transparent standards of practice such that there is confidence in their training, their competence and their integrity.
- Far from being a sign of weakness the use of and the offer of the use of such techniques is wise, culturally normal and indeed would be expected by the Court.
- The Court should promote the use of ADR techniques to the extent that they would impose cost sanctions on those who did not agree to take reasonable steps toward settlement and reasonable steps towards the use of ADR. (The Parties would always be free to settle or not and the Court would never sanction a failure to do so.)
The Working Party says that increasing public awareness of ADR is the most difficult challenge. It concludes:
- The promotion of ADR must be seen as part of the wider challenge of public legal education;
- Initiatives such as peer mediation in schools and colleges and the annual Mediation Awareness Week should be applauded.
- There must be a more complete embrace of ADR in law faculties and professional training and disciplinary codes.
- There should be greater coordination between the different ADR areas, including restorative, family, civil, workplace and community, to provide a single “voice of mediation”.
- A new website (perhaps to be called “Alternatives”) should be created as a central online hub for information about ADR to include videos of the different types of ADR techniques being demonstrated;.
- The ADR community must continue to push, as we know it has tried to do for many years, for references to ADR into the broadcast media and into social media.
On availability of ADR:, the Working Party concludes:
- There is a need to ensure the availability of judges for Judicial Early Neutral Evaluation particularly at the fast track level. (We encourage the Financial Dispute Resolution approach – used in family disputes – in low value cases).
- The small claims mediation scheme should be fully resourced so that it can fulfil its potential.
- The Civil Mediation Council should consider the accreditation of cheaper more proportionate forms of mediation such as 3 hour telephone mediations.
- The CMC should look carefully at emulating the regulatory approach of the Family Mediation Council.
- The role of the case officer under the online court system is crucial as is the importance of appropriate recruitment and training.
- Steps should be taken to promote standards for Online Dispute Resolution as a necessary step towards its further promotion and acceptance.
As regards Court/Government encouragement of ADR, the Working Party concludes, among other things, that:
- There should be a review of the operation of the Consumer ADR and ODR Regulations to ensure that the existing rules are complied with and careful thought should be given to their further reinforcement;
- The Rules and the case law have to date been too generous to those who ignore ADR and in our unanimous view under‐estimate the potential benefits of ADR. The present ethos is most clearly embodied in the Halsey guidelines but its approach is embedded in the rules and the court machinery as a whole. These require review.
- Court documents, protocols, guidance material for litigants and case management should all express a presumption that ADR should be attempted at an appropriate stage on the route through to trial.
- The terms of the claim document (potentially also the Defence document) should include a requirement to certify attempts to contact the other party and achieve settlement.
- There should be earlier and more stringent encouragement of ADR in case management: there should be a perception that formal ADR must be attempted before a trial can be made available; we should explore the possibility of applying sanctions for unreasonable conduct that make sense at the interim stage.
The Working Party also states that it has been keen to identify an acceptable mechanism under which a mediation could be triggered without the intervention of the Court. It thinks the British Columbia Notice to Mediate procedure is the most promising option for a first step in this direction.
Where these proposals will go next are very hard to say.
It would be good to see the development of the proposed website. This might be achieveable pretty quickly and at modest cost.
It seems to me that the highly critical references to the Halsey decision – which have been a real drag on positive developments in practice – amount to a clear invitation for the issue to be revisited in the courts, assuming that a suitable case can be found.
When I chaired the ADR sub-Committee, a specific issue was what was the attitude of the judiciary to ADR, and whether or not it was right for them to participate in, for example, Early Neutral Evaluation. This is likely to need further work and training for judges to gain the confidence and experience to undertake this work.
The calls for public legal education sound fine – but can they be made effective without funding?
Notwithstanding these reservations, ADR remains an issue which remains important in the developement of civil justice practice and procedure.
The report can be accessed at https://www.judiciary.uk/announcements/new-report-on-alternative-dispute-resolution/
Consultation on extending Fixed Recoverable Costs
Historically the civil justice system in England and Wales has operated under a ‘loser pays’ model, whereby the unsuccessful party to litigation covers the costs of the successful party. This can lead to high costs for the unsuccessful party.
In recent years, increasing consideration has been given to the idea that the costs paid by the loser should be fixed. Fixed Recoverable Costs (FRC) prescribe the amount that the winner can claim back from a losing party in civil litigation. These legal costs are set in advance by reference to grids of costs. Thus FRC have the advantage of giving both parties certainty as to the maximum amount they may have to pay if they are unsuccessful in their case. FRC can also ensure that the costs of cases are proportionate to the sum in issue.
FRC currently operate in most low value personal injury cases. The government and senior judiciary announced their support for extending FRC in November 2016, and Sir Rupert Jackson, then a judge of the Court of Appeal, was commissioned by the senior judiciary to develop proposals. Sir Rupert’s report, which was published in July 2017, follows on from his major report of 2010 looking at civil costs more widely, which led to significant reforms to controlling costs, including ‘no win, no fee’ reforms in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).
Sir Rupert’s July 2017 supplementary report which focuses on the extension of FRC, completes his recommendations. (See this blog, 29 September 2017) The Government has now decided that the time is now right to consider the extension of FRC to more cases, on the lines recommended by Sir Rupert.
The Government is not planning to take forward all Sir Rupert’s recommendations. This Consultation focusses on three specific matters:
- Extending FRC to cases valued up to £25,000 in damages in the fast track. (This principle has already been adopted for Clinical Negligence claims);
- A new process and FRC for Noise Induced Hearing Loss;
- Expanding the fast track to include the simple ‘intermediate’ cases valued £25,000–£100,000 in damages.
The Consultation runs until 28 June 2019.
For details go to https://consult.justice.gov.uk/digital-communications/fixed-recoverable-costs-consultation/
Courts and Tribunals (Judiciary and Functions of Staff) Act 2018
In June 2018, I noted the arrived of the Courts and Tribunals (Judiciary and Functions of Staff) Bill. It has now completed its Parliamentary process and became law at the end of 2018.
The aims of the legislation remain unchanged. The Act contains measures that are essential to enabling the judiciary to respond to the changing demands of a reformed courts and tribunals system and delivering better services to users.
The Act also introduces much greater flexibility to the deployment of judges. It also frees up judges’ time to focus on more complex matters by allowing suitably qualified and experienced court and tribunal staff to be authorised to handle uncontroversial, straightforward matters under judicial supervision.
The measures in the Act will also increase the efficiency of the courts and tribunals.
For further details see https://www.gov.uk/government/publications/courts-and-tribunals-judiciary-and-functions-of-staff-bill
Dealing with domestic abuse: draft Bill published
Given all the time and attention devoted to Brexit, it is perhaps not surprising that other important policy initiatives have not been achieving the publicity they deserve. A good example of this was the publication, in January 2019, of a draft Domestic Abuse Bill.
Domestic abuse is a cruel and complex crime that can affect anyone. It leaves physical and emotional scars that can last a lifetime. It also places a considerable demand on public services. Home Office research estimates the economic and social costs of domestic abuse to society to be £66 billion for victims in 2016 to 2017.
A consultation, launched in March 2018 asked questions on how policy should develop to achieve 4 main objectives:
- promote awareness – to raise public and professional awareness
- protect and support – to enhance the safety of victims and the support that they receive
- transform the justice process – to prioritise victim safety in the criminal and family courts, and review the perpetrator journey from identification to rehabilitation
- improve performance – to drive consistency and better performance in the response to domestic abuse across all local areas, agencies and sectors.
Following the consultation, the Government has defined 9 measures that require legislative change – which is the focus of the draft Bill. They are:
- create a statutory definition of domestic abuse
- establish the office of Domestic Abuse Commissioner and set out the commissioner’s functions and powers
- provide for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order
- prohibit perpetrators of domestic and other forms of abuse from cross-examining their victims in person in the family courts (and prevent victims from having to cross-examine their abusers) and give the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’s evidence or cause the witness significant distress
- create a statutory presumption that complainants of an offence involving behaviour that amounts to domestic abuse are eligible for special measures in the criminal courts
- enable high-risk domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody
- place the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing
- ensure that, where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy), this must be a secure lifetime tenancy
- extend the extra-territorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.
As the Bill has been published in draft, it is unlikely to become law until 2020 at the earliest.
For further detail see https://www.gov.uk/government/publications/domestic-abuse-consultation-response-and-draft-bill
The Home Office research is at https://www.gov.uk/government/publications/the-economic-and-social-costs-of-domestic-abuse
Information on the Domestic Violence Disclosure Scheme and related guidance (which was updated in December 2016) is available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/575361/DVDS_guidance_FINAL_v3.pdf
Transformation: Courts and Tribunals, 2022: HMCTS and MoJ respond to the Public Accounts Committee
I noted in 2018 the critical report from the National Audit Office (see this blog June 2018) and the subsequent report (which I labelled ‘brutal’) from the Public Accounts Committee (see this blog October 2018) on the courts and tribunals transformation programme.
Well, now the Ministry of Justice and HM Courts and Tribunals Service have come back with a series of replies, setting out the progress that has been made with the transformation programme, and setting out targets for the following 6 months.
Between November 2018 and February 2019, MoJ and HMCTS published no fewer than 6 reports, each one responding individually to the six principal criticisms made by the Public Accounts Committee.
The most fundamental question is whether the timeframe for the delivery of the transformation programme is being adhered to. The report on Recommendation 1 – which deals with this question – acknowledges that parts of the programme have not yet been started while listing a substantial body of completed work.
Other responses deal with:
- the impact of the transformation programme on users;
- engagement with stakeholders;
- the financial implications of the transformation programme on the wider justice system;
- evaluating the impact of the reform programme on access to justice and the fairness of the justice system; and
- balancing the portfolio of change projects to ensure that there is some flexibility and an ability to respond to financial pressures.
Interestingly, less than a month after the publication of the latest of these reports a Press Release in March stated that at least some aspects of the Transformation programme will not be completed until 2023. (See https://www.lawgazette.co.uk/news/breaking-hmcts-delays-1bn-courts-reform-by-a-year/5069501.article)
There is a lot of detail in the reports. They can be found by going to https://www.gov.uk/government/news/response-to-public-accounts-committee-transforming-courts-and-tribunals
This links to each of the six individual responses.
In January 2019, the Justice Select Committee announced that it too would be conducting an inquiry into the Courts and Tribunals Reform programme. See https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/court-and-tribunals-reform-inquiry-17-19/
It is right that such a major reform programme should be carefully scrutinised by MPs. They can help to ensure that the transformation, that I think is needed, is delivered.
Post-implementation review of Legal Aid, Sentencing and Punishment of Offenders Act 2012, Part 2 (The ‘Jackson’ reforms on costs)
Part 2 of LASPO introduced changes recommended by Lord Justice Jackson on the rules relating to the costs of civil litigation. The Post-Implementation Review (PIR) report, also published in February 2019, covers the following five changes made by the Act:
- non-recoverability of conditional fee agreement (CFA) success fees;
- non-recoverability of after the event insurance (ATE) premiums;
- the introduction of Damages-Based Agreements (DBAs);
- section 55 changes to Part 36 offers; and
- banning referral fees in personal injury (PI) cases.
These changes came into effect in April 2013. Other changes – dealing with different issues, and which came into effect at different times – were not within the scope of the PIR
According to the PIR review, the changes had five objectives:
- reducing the costs of civil litigation (Objective 1);
- rebalancing costs liabilities between claimants and defendants (Objective 2);
- promoting access to justice at proportionate cost (Objective 3);
- encouraging early settlement (Objective 4); and
- reducing unmeritorious claims (Objective 5).
The review drew on evidence presented to the review team by a range of stakeholders involved in civil litigation. Data were also subject to empirical analysis by Professors Fenn and Rickman – two researchers with a long track record of empirical analysis of court and process data.
The overall conclusion of the Review was that, in general, the objectives of the legislation had been met.
There was concern that the regulations relating to Damages Based Agreements were not as clear as they might be; the Government will consider whether to amend them in due course.
The Review did not consider other reforms made by Lord Justice Jackson, in particular relating to much greater use of fixed recoverable costs. The Report states that the Government is not currently minded to introduce these further changes.
Practitioners had expressed the view, during review, that a period of regulatory stability would be welcome. It seems that the Government has largely accepted this.
The Press Release and Report can be accessed at https://www.gov.uk/government/publications/post-implementation-review-of-part-2-of-laspo
Legal support – the way ahead? How much vision?
I have already noted the outcome of the Post-Implementation Review of changes to the Legal Aid scheme contained in Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012. While the Government clearly does not want to make major changes to the scheme, the review did reveal issues to which the Government clearly feels it must respond. In February 2019 it published Legal Support: The Way Ahead – An action plan to deliver better support to people experiencing legal problems.
As a paper, it lacks the ambition or vision of other recent reports, in particular the Report of the Low Commission report on the future of legal services. But buried in the detail is a number of straws in the wind which are worth noting, even if they don’t make the heart race.
The Paper starts by repeating the point that the Government already provides ‘£1.6 billion to the most vulnerable in society to ensure that they can access legal aid’. It seems to accept, however, that there are some who – at least in some circumstances – should receive legal aid who currently do not get it. The Paper states that the Government ‘will conduct a review into the thresholds for legal aid entitlement, and their interaction with … wider criteria’. This review will be completed by summer 2020.
In the interim there will be changes to eligibility for some public family law cases, to be introduced in summer 2019.
And, whilst the review is ongoing, the Government will continue with current arrangements to passport all recipients of universal credit through the legal aid means test.
Addressing the problem that people do not know about their entitlement to legal aid, the Government states that it ‘will ensure that more people are aware of their entitlement to legal support – and will advertise its availability’. The stated aim is to launch the awareness programme by autumn 2019 – dealing not just with legal aid, but legal support more generally.
The Government plans to make some changes to protect the most vulnerable. It will expand the scope of legal aid to include separated migrant children in Spring 2019. It also plans to bring forward proposals to expand the scope of legal aid to cover special guardianship orders in private family law by Autumn 2019.
As regards Exceptional Case Funding, the Government plans to consider, by the end of 2019, whether the process for applying for Exceptional Case Funding can be simplified, and whether decisions can be reached more quickly. It will also consider whether it is necessary to introduce a new emergency procedure for urgent matters to access Exceptional Case Funding.
By Spring 2020, the Government will amend the rules relating to the ‘mandatory telephone gateway’ so that there can be immediate access to face-to-face advice in discrimination, debt and special educational needs cases. (The telephone option is retained.)
The new Paper accepts that ensuring people can access the right legal support at the right time may help people resolve problems more efficiently and effectively. There is research evidence demonstrating how problems, if left undiagnosed and unresolved, can escalate, cluster, and lead to damaging cycles that are hard to break. However, the Government states that there is limited comprehensive research as to what works best, when, and for whom. Further, whilst it is often suggested that early intervention leads to cost savings, the financial and economic benefits of early advice are difficult to quantify with accuracy. The Government’s response to this challenge is that it wants to pilot and evaluate several different forms of early legal support.
Thus,
- it will work collaboratively with providers to develop web-based products which bring a range of legal support tools together in one place;
- it will improve the signposting advice and support available from the existing specialist telephone service and test enhancements to this service;
- it will use funding to encourage the delivery of legal support through technology;
- recognising that a comprehensive service may offer people an opportunity to support themselves, the Government will work collaboratively with the legal and advice sector to evaluate the impact of legal support hubs;
- it will pilot face-to-face early legal advice in a specific area of social welfare law and will evaluate this against technological solutions, bearing in mind costs; and
- it will enhance the support offered to litigants in person.
All these interventions will be researched to assess what is the best way to help and support those who need it, and whom should be assisted in the provision of legal support. The intention is that there should be outcomes from these initiatives by the end of 2019.
The Government states that it will continue to work across departments to help to improve the quality of decision-making on legal rights. It has been noted on numerous occasions that if decisions are ‘right first time’ this should reduce the need to take cases on appeal.
Key to the modernisation of the justice system is the need to ensure that forms and systems are as simple and straightforward to use as possible, and that the courts and tribunals service enables people to resolve their conflicts as quickly and early as possible. The Government wants to generate momentum in this area, but acknowledges that this is a first step.
It will be important for the Government to continue open and collaborative working with experts over the coming years, identifying and evaluating new ideas. One specific commitment is that the Government plans to set up a Legal Support Advisory Network to make use of external expertise, shape research and evaluation proposals, and potentially explore new research opportunities and collaborations.
As a nod to the problem of whether or not there will be sufficient numbers of people entering this sector of the legal services market, the Government states it will ‘support practitioners to join the legal profession and continue to deliver high quality legal support to people across England and Wales long into the future’.
Specifically there will be a comprehensive review of the criminal legal aid fee schemes and structures, to be completed by Summer 2020.
The full paper can be accessed at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777036/legal-support-the-way-ahead.pdf
See also Press Release at https://www.gov.uk/government/news/government-sets-out-new-vision-for-legal-support
Civil Liability Act 2018
The Civil Liability Act 2018 makes significant changes to the personal injury compensation system. In outline, it has three principal objectives.
First, it changes the rules relating to claims for injury for whiplash (which arise when someone drives into the back of your car). Measures in the Act will:
- provide for a tariff of compensation for pain, suffering and loss of amenity for whiplash claims. The final tariff will be set in supporting regulations via the affirmative procedure following Royal Assent.
- enable the court, subject to regulations, to increase the compensation awarded under the tariff
- introduce a ban on seeking or offering to settle, whiplash claims without appropriate medical evidence
The purpose of these changes is to try to reduce the cost of motor insurance for motorists in general by reducing the numbers and amounts of such claims.
Second, it makes changes to the way in which what is called the Personal Injury Discount Rate is set. The new rules will
- retain the 100% compensation principle which has long been a central part of the law, but modernise the calculation of the discount rate so that it reflects the reality of how claimants actually invest money. This provides a fairer and better way to set the rate for both parties
- put the process of setting the rate on a statutory footing, with expert independent advice and a requirement for the Lord Chancellor to set it at least every 5 years, giving clarity and assurance to claimants and to those underwriting costs. The regular setting of the rate will ensure vulnerable people suffering life-changing accidents have their compensation adjusted by an up to date rate
- create an independent expert panel, which the Lord Chancellor will be required, from the second review under the new legislation, to consult in relation to the factors he or she may consider in setting the rate. This will bring a wider range of expertise into the process
Thirdly. the Act requires insurers to provide information to the Financial Conduct Authority so that the government can assess whether they have passed on savings as a result of the Act to their customers.
Review of legal aid for inquests
Inquests offer an opportunity to investigate how a person has died. This process can be traumatic for the bereaved family. But the search to find out what happened is important in helping them to understand and make sense of their loss.
In 2017, in the light of a good deal of public criticism, the then Lord Chancellor, David Lidington MP agreed that there should be a review of the provision of legal aid at inquests. The Report Final report: Review of legal aid for inquests was published in February 2019.
In my view the title is misleading. The Report takes an overall look at the Inquest process. Only 1 of 3 chapters is actually about legal aid. The focus is on process both before a hearing and at the hearing, and the report makes recommendations about amending those processes – which obviously cost little if any money.
Chapter 2 deals with legal aid. In the course of the review, the Ministry of Justice received evidence which pointed to a number of concerns that stakeholders had regarding the provision of legal aid and the role of families in the application and inquests process. In particular, it suggested:
- the current legal aid application process might not be fully understood;
- there were difficulties in understanding the eligibility criteria for legal aid; and
- there were difficulties understanding the types of cases where funding may be available.
The Review also considered the recommendation to expand the provision of legal aid for certain types of cases – such as death in custody cases, and cases where the state are represented. This is the big-ticket item as it in those, often very controversial cases, where there can be a significant inequality of arms as between the parties to the inquest.
In relation to this point, however, the Review concludes:
Having considered the impact of additional representatives on bereaved families, the financial considerations, and the impact of a possible expansion on the wider legal aid scheme, we have decided that we will not be introducing non-means tested legal aid for inquests where the state has represented. However, going forward, we will be looking into further options for the funding of legal support at inquests where the state has state-funded representation. To do this we will work closely with other Government Departments.
So no big change. The Government says it will look at the information it gives to families. In order to address difficulties with the application process, the Government states it will look at the procedure for claiming under the Exceptional Case Funding Scheme to ensure it works as effectively as possible. It also states it will be introducing a provision for the backdating of the legal help waiver, so that all such payments can be backdated to the date of application should a waiver be granted. But these cannot be said to be substantial changes.
Given the overall approach to funding legal aid, following its Post-implementation Review of the 2012 reforms to legal aid (see this blog 8 March 2019) this conclusion is not unexpected. Nonetheless, it will be very disappointing to those who have to cope with inquests, particularly where there are significant evidential disputes as to what happened.
The Report can be accessed at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777034/review-of-legal-aid-for-inquests.pdf
A press release is at https://www.gov.uk/government/publications/review-of-inquests
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 