Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 10’ Category

On-line courts come a stage closer: Bill to establish new On-line Procedure Committee

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May 1st 2019 saw an important stage reached in the process of creating more on-line procedures to deal with family, civil justice and tribunals proceedings. The Courts and Tribunals (Online Procedure) Bill was introduced to House of Lords where it had its first reading.

The Bill, when enacted, will provide for the creation of a new judicially led procedure committee. It will develop special rules to ensure that on-line procedures are easy to use and accessible to the public.

This builds on new processes already introduced such as divorce online and money claims online.

A press announcement is at https://www.gov.uk/government/news/even-more-people-set-to-benefit-from-online-court-reform

 

 

 

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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/

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

Legal support – the way ahead? How much vision?

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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

 

 

Review of legal aid for inquests

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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

 

 

 

 

 

Written by lwtmp

March 8, 2019 at 12:50 pm

Post Implementation Review of LASPO 2012 Part 1 (reform of legal aid)

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February 2019 was a busy month for the Ministry of Justice.They published a large number of official documents relevant to the future of the English Legal System.

First up was the long-awaited post-implementation review of the legal aid changes brought about by Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), Part 1 which introducted major changes to the legal aid scheme. This is a very long document which concludes, broadly, that not much is going to change, at least in the short-term.

The key objectives of the reforms, as the Government saw them, were

  1. to reduce expenditure on legal aid;
  2. discourage unnecessary and adversarial litigation at public expense;
  3. target legal aid on those who need it most;
  4. deliver better overall value for the taxpayer.

The Review concludes, in the light of large amounts of evidence it received, that Objective 1 was successfully achieved. In relation to objective 2, the outcomes are unclear. There has been a reduction in clinical negligence litigation, now funded by Conditional Fee Agreements rather than legal aid; but family law litigation is increasing – diverting cases to mediation has not worked. The Review ‘cannot say with certainty’ whether objective 3 has been successful, as there in insufficient evidence from those outside the scope of the current legal aid scheme. They also cannot reach any conclusions regarding Objective 4.

A number of themes also emerged from the Review:

  1. Scope changes undermining value for money: LASPO removed many areas of early civil and family legal advice from the scope of legal aid, restricting it to the most serious cases. It is argued this lack of early intervention in social welfare and private family law generate wider costs as relatively minor legal problems can escalate and cluster into more serious problems.
  2. People who need legal aid cannot access it: LASPO did not substantially reform the financial eligibility requirements but lots of evidence was submitted arguing change was necessary.
  3. Exceptional Case Funding is not working:  There were lots of criticisms over how the scheme operates.
  4. Fees for legal aid work are inadequate:  Many practitioners, especially in criminal law, have argued this is affecting recruitment and retention, potentially creating future problems in provision.
  5. Increases in litigants in person generating costs: by removing funding for legal representation the volume of self-representing litigants has risen.
  6. Advice deserts: people may not able to access advice due to geographical remoteness, or a shortage of supply in their given area.

There was never going to be any chance that, despite the difficulties of assessing whether the objectives for the original legislation had been met and all the other issues the Review identified, the cuts made by LASPO would be restored. The Government has, however, taken modest steps which are worth noting and will be considered in future blog items.

The full report of the Review is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777038/post-implementation-review-of-part-1-of-laspo.pdf

 

 

 

 

Written by lwtmp

March 8, 2019 at 11:08 am