Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for March 2019

How to develop the use of Alternative Dispute Resolution – Civil Justice Council report

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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

  1. Citizens must be aware that when civil disputes arise there are alternatives to the present choice of capitulation or litigation.
  2. Citizens must be aware that those alternatives include approaches involving neutral third parties to assist settlement.
  3. 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.
  4. 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.
  5. 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

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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:

  1. 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);
  2. A new process and FRC for Noise Induced Hearing Loss;
  3. 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

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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

 

 

Written by lwtmp

March 16, 2019 at 10:28 am

Dealing with domestic abuse: draft Bill published

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Given all the time and attention devoted to Brexit, it is perhaps not surprising that 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 policy should develop to d 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

 

 

Written by lwtmp

March 15, 2019 at 10:27 am

Criminal Injuries Compensation: Abolition of the ‘same roof’ rule

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At the end of February 2019, the Government announced that it was introducing a measure to amend the criminal juries compensation scheme. The amendment would abolish the rule that a victim could not claim compensation under the scheme where he/she lived under the same roof at the perpetrator.

The ‘same roof rule’ was part of the original scheme introduced in 1964 and was intended to ensure perpetrators would not benefit from compensation paid to victims they lived with.

It was amended in October 1979 so future victims could claim compensation if they no longer lived with their attacker and were unlikely to do so again. However, as is common with many changes to the law, this was not made retrospective – which meant some victims may have missed out on compensation if they were a victim of a violent crime before the law change.

A statutory instrument, laid in Parliament on 28 Feb 2019, will remove the pre-1979 rule completely – enabling more victims access to compensation.

Ministers had recognised the rule’s unfair impact on victims of crimes such as child sexual abuse. The move will amend the Criminal Injuries Compensation Scheme so that all victims abused by someone they lived with can reapply for compensation – regardless of when the attack took place.

It will mean that victims who may not have come forward because of the rule, or were previously denied awards under it, will be eligible to claim compensation – with awards being made to those who meet the Scheme’s other criteria.

The ongoing review of the Criminal Injuries Compensation Scheme, which will report later in 2019, will look at, among other things, concerns around the eligibility rules, the definition of ‘violent crime’, and the type of injuries that are covered.

See press announcement https://www.gov.uk/government/news/access-to-compensation-scheme-for-victims-who-lived-with-their-attacker

 

 

 

Written by lwtmp

March 14, 2019 at 4:57 pm

Transformation: Courts and Tribunals, 2022: HMCTS and MoJ respond to the Public Accounts Committee

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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)

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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:

  1. reducing the costs of civil litigation (Objective 1);
  2. rebalancing costs liabilities between claimants and defendants (Objective 2);
  3. promoting access to justice at proportionate cost (Objective 3);
  4. encouraging early settlement (Objective 4); and
  5. 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

 

 

 

 

Written by lwtmp

March 10, 2019 at 1:45 pm