Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 10’ Category

Covid 19 and the English Legal System (13): Justice Committee reports on the impact on the Courts and on the Legal Profession

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I have noted before that a number of Parliamentary Committees are examining aspects of the impact of Covid 19. The Justice Committee is in the middle of publishing a series of reports on this question. The first two of these, on Courts and on the Legal Profession have been published (30 July 2020 and 3 Aug 2020).

Both reports are, inevitably, in the nature of interim reports – given that we are still in the middle of a crisis, the outcome of which is far from clear.

The first report, on the Courts, takes up the widespread criticism that there were already considerable backlogs and unacceptable delays in the criminal justice system which have been exacerbated by the arrival of Covid 19.

The Committee notes that measures being put in place to improve the performance of the Crown Courts include a possible increase in the number of sitting days and the opening of the (temporary) Nightingale Courts – specially adapted spaces in which criminal trials can be dealt with.

As regards Magistrates’ Courts,  the Committee found that the end of May 2020, there were 416,600 outstanding cases in the magistrates’ courts, which is the highest backlog in recent years. (The backlog previously peaked at 327,000 outstanding cases in 2015.) By mid-June, the figure was even higher. HMCTS has promised a ‘recovery plan’; the Committee states that it looks forward to seeing it.

By contrast with the criminal justice system, the civil, administrative and family systems have fared relatively better. Much of this has been the result of the ability of the courts and tribunals service to move hearings online. The Committee repeats concerns raised elsewhere, for example about enabling those who find it hard to use IT to participate, and that some types of family dispute are hard to deal with online.

The Committee stresses the importance of HMCTS undertaking proper evaluations of the impact of these new procedures on users of the system. It also emphasises that changes in practice arising out of the need to respond to the pandemic should not be adopted on a permanent basis, without more evaluation and consultation.

The Justice Committee report on the impact on the legal profession is not as general as its title might suggest. It focusses primarily on the impact on legal aid practitioners and other advice agencies, arguing that they continue to need financial support if the provision of services – particularly in criminal cases – is not to be lost.

The Committee’s report on the impact of Covid 19 on the Courts is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/519/51905.htm

Their report on the impact of the pandemic on the legal profession is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/520/52003.htm

 

 

 

 

 

 

Public legal education: news from Law for Life

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While the importance of public legal education is widely accepted in principle, it is left to the work of a pretty small charity, Law for life: foundation for public legal education, to continue to fly the flag for this important project.

The aims of the charity are to increase access to justice by providing everyone with an awareness of their legal rights together with the confidence and skills to assert them.

Most people struggle to cope with legal issues, and often don’t know where to go for help. Being able to cope with family and housing issues, sorting out employment and benefit matters or difficulties with goods and services is crucial. These issues are the cornerstones of everyday life that can become drivers of poverty and inequality if left unresolved.

To address these challenges Law for Life

  • publishes the online Advice Now information service that draws together the best up-to-date information about the law and rights available on the internet;
  • creates effective materials (leaflets, videos) that provide practical help on how to manage and resolve life’s legal problems;
  • delivers community-based education and training projects focussing on housing, welfare, consumer, and employment issues with an emphasis on skills;
  • offers consultancy to other organisations.

Updates on the work of Law for Life are provided in regular newsletters, the most recent of which was published on 30 June 2020.

For further details about Law for Life, see https://lawforlife.org.uk/

Advice Now is at https://www.advicenow.org.uk/

The Law for Life Newsletter is at https://mailchi.mp/42bebf74018a/8wt2tlhi1o-3120242?e=f65948d0ee

This has links to the full archive of Law for Life Newsletters.

 

 

 

 

Written by lwtmp

July 13, 2020 at 9:50 am

Computers and the delivery of legal services – the Society for Computers and Law

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It is not hard to imagine that the use of computers will increasingly impact on the ways in which legal and dispute resolution services are provided. Many will resist such developments, not least because they will threaten existing ways of workings with which people are familiar.

But those thinking about how the world of legal practice will develop over the short to medium term should be aware of what is happening and how developments may affect the future, not just in England of course, but universally.

In this context, those starting their legal studies should be aware of the Society for Computers and Law.

The Society’s website explains that it was established in 1973 “to promote the use and understanding of information technology (IT) in the context of the law”. For the first twenty years of its existence it focused more on the technical aspects of IT in use to support legal practices. Since then its focus has shifted more to the practice of IT law as a specialist subject as this has evolved to encompass new issues like the world wide web and digital media.

As a charity, the objects of the Society are

(1) The advancement of education of the public in the fields of: a. information technology law and other related legal subjects; b. information technology as applied to the practice of the law; and c. the law, by the use of information technology.

(2) The promotion of the sound development, administration and knowledge of the law relating to information technology and related legal subjects, both generally and by research and study concerning the same.

The issues which are currently at the forefront of their efforts at the start of the 21st century include:

Operational effectiveness: ranging from the choice of hardware and operating systems through to software selection and development for both lawyers and support teams.

Legal matters: such as data protection, computer contracts and software ownership.

The administration of justice: the impact of IT on the Courts.

Education: promoting the benefits at all levels that the use of information technology has to the legal profession as a whole.

The Society is currently engaged in an important exercise to promote the development of TechLaw in the legal curriculum.

Further information is available at the Society’s website at https://www.scl.org/society

 

 

 

 

Written by lwtmp

July 3, 2020 at 11:56 am

Judicial review and Covid-19: reflections on the role of crowdfunding

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This is an interesting item on the use of crowdfunding to pursue issues arising out of the Covid 19 pandemic. it raises some interesting questions about whether this form of litigation finance is appropriate in all circustances.

UKAJI

Judicial review and Covid-19: reflections on the role of crowdfunding

IMG_20200604_123218Sam Guy – MA Social Research student and incoming ESRC-funded PhD candidate at the University of York

The Government’s response to the Covid-19 pandemic has been subject to significant numbers of judicial review challenges, many of which have been financed using crowdfunding. These cases, and the public’s responses to them, illuminate some of the opportunities and threats posed by this resource as a form of judicial review funding.

Crowdfunding as responsive collective action

There are at least two benefits of crowdfunding that have become particularly apparent in the pandemic. Firstly, it can offer a quick and expedient method for claimants to raise money towards potentially otherwise unaffordable litigation. The current environment for public interest judicial reviews is one of scarce state funding and high costs risk. Into this context, crowdfunding provides an alternative, democratised source of funding. As a result…

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Written by lwtmp

July 2, 2020 at 11:19 am

Report of the Commission on Justice in Wales: summary of recommendations

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I have just published a short blog on the constitutional changes being made in Wales. As part of that, I mentioned the publication of the Commission on Justice in Wales, whose report was published in October 2019. I think it is an extremely interesting document, for two main reasons.

  1. There are a number of specific ideas in this report which should be considered more actively for implementation in England as well.
  2. It offers a holistic set of proposals for a distinct Justice system for Wales. I have long thought that justice policy in England was made in a piecemeal way. This report provides a model of what a comprehensive Justice Policy in England might look like.

Of course, it is easier for a new government to engage in forward planning at a time when its responsibilities are limited. But the ways in which different parts of the English legal system have been dealing with Covid 19 have often been innovative and imaginative. I would argue that this provides an opportunity, for those willing to seize it, for thinking about what a coherent modern justice policy for England might look like.

Anyway, I offer this summary, adapted from the Commission’s report as something that those interested in Justice policy in England might also like to consider.

Source: Commission on Justice in Wales at https://gov.wales/commission-justice-wales

Commission on Justice in Wales: Summary of recommendations

1. Information, advice and assistance

  • The funding for legal aid and for the third sector providing advice and assistance should be brought together in Wales to form a single fund.
  • Criminal legal aid policy and delivery should be based on the approaches to public defender schemes adopted by the Nordic nations.

2. Criminal justice: reducing crime and promoting rehabilitation

  • A new Wales Criminal Justice Board should be created. It should set an overall strategy for Wales including responsibility for ensuring the rights of victims are respected and there is proper delivery of services to victims.
  • The Police, Crown Prosecution Service, the judiciary and HM Prison and Probation Service should each publish a strategy in respect of Black, Asian and Minority Ethnic people in Wales and report annually on the strategy to the Assembly.
  • Policing and crime reduction policy, including drug abuse and mental health related issues, should be determined in Wales so that it is aligned and integrated with Welsh health, education and social policy.
  • Problem-solving courts should be established in Wales along the Northern Ireland model.
  •  Youth justice policy should be determined and delivered in Wales. The age of criminal responsibility should be raised to at least 12 years old.
  • A comprehensive network of services and centres as alternatives to custody should be established rapidly. An integrated and whole system approach to offender management should be established with a single rehabilitative strategy in Wales.
  • Needs assessments of Welsh offenders should be conducted to identify the range of interventions required in both prisons and the community.

3. Civil justice

  • Digital court services and other dispute resolution services that are being developed and introduced must be fully accessible to people throughout Wales.
  • Dispute resolution before courts, tribunals, alternative dispute resolution and ombudsmen, as well as dispute resolution in respect of administrative law, should be promoted and coordinated in Wales through a body chaired by a senior judge.
  • The feasibility of a low cost and effective resolution method for civil disputest hrough the use of a comprehensive ombudsmen scheme, taking into account the online court, should be examined.

4.  Administrative justice and coroners

  • All public bodies, ombudsmen and other tribunals which have been established under Welsh law or by the Welsh Government, which make judicial or quasi-judicial decisions, and are not currently subject to the supervision of the President of Welsh Tribunals, should be brought under the supervision of the President.
  • The Administrative Court should have the power to stay court proceedings whilst the Public Services Ombudsman for Wales investigates a complaint. The Ombudsman should have the power to refer a point of law to the Court.
  • The Welsh Tribunals Unit should have structural independence and the Welsh tribunals should be used for dispute resolution relating to future Welsh Legislation.

5. Family justice: children

  • The law relating to children and family justice in Wales should be brought together in one coherent legal system aligned with functions in relation to health, education and welfare.
  • Pending further research and the development of a long-term strategy, an all Wales approach to family justice should be developed and led in Wales through the Family Justice Network for Wales and the Local Family Justice Boards. The approach should be followed by all local authorities for dealing with child protection referrals with the objective of avoiding care proceedings when family support would be more appropriate.
  • It should be a matter of routine practice prior to the first hearing in care proceedings to examine the feasibility of problem-solving and the form it might take, with a view to finding what steps short of taking a child into care can be put in place.
  • The voice of the child should be heard at every stage of the proceedings.
  • Family Drug and Alcohol Courts should be established in Wales
  • There should be vigorous support for a programme of research to underpin reform of Welsh family justice and associated preventative services. The overarching aim should be the reduction in the numbers of children taken into care and the provision of far better evidence of the impacts of intervention on family life.
  • A carefully thought through long-term policy for reducing the numbers of children taken into care should be developed after the conclusions of the research and then implemented.
  • Legal advice should be available to each parent in private family law disputes prior to the commencement of proceedings up to a maximum fixed amount in each case

6. Delivering justice: locality and structure

  • A strategy for Wales for provision of proper physical and digital access to justice before the courts, tribunals and other forms of dispute resolution should be drawn up and determined in Wales based on the needs of the people of Wales

7. The legal sector and the economy of Wales

  • The Welsh Government should, in close consultation with the legal professions, provide fully-funded legal apprenticeships to enable people to qualify as legal professionals in Wales.
  • There should be greater transparency about the level and distribution of expenditure on external legal services by the Welsh Government, each Welsh local authority and all other public bodies in Wales.
  • The procurement of barristers’ services should be reformed to help build the capacity of the Bar in Wales.
  • The Welsh Government should develop and implement as soon as possible our proposed strategy to reinvigorate the rural and post-industrial legal sector in Wales. It should provide strong support for investment in technology, especially in post-industrial and rural Wales.
  • The Welsh Government must provide clear leadership and support for the legal services sector. This should be targeted, user-friendly, flexible and attractive to potential inward investors especially with establishing a technology-based nearshoring centre as an objective.
  • The Welsh Government, legal professionals in Wales, the Law Society, the Bar Council, other professional bodies and academia should work in partnership. They should develop and promote the capabilities of the legal sector, promote South Wales as a legal centre and increase the export of legal services.

8. Knowledge, skills and innovation

  • Welsh law schools must reassess their undergraduate programmes to take advantage of the scope for comparative studies and transferable qualifications.
  • Law tech must be taught to all students and the professions across Wales.
  • All university and college education providers in Wales should teach Welsh law as part of the ordinary undergraduate syllabus and work together to produce the necessary material. The place of Welsh law and the distinctiveness of the law in Wales should be properly reflected in professional and continuing legal education and training. Wales specific data should be collected and published on a sufficient scale to enable disaggregation, with a view to proper evidence-based policy development and as a basis for research.
  • The Welsh Government should lead the development and implementation of an action plan to promote and support public legal education, particularly for children and young people.

9. The Welsh language

  • All justice bodies should be subject to the Welsh Language Measure 2011. The Bar, CILEx and the Law Society should provide courses on using Welsh in the workplace, similar to those used by the Judicial College. Digital services that are being introduced must be accessible, free help must be available and all must be available in Welsh at the same time as the English version.
  • Professional legal education for those wishing to practise in Wales must be available in the Welsh language with the phased introduction of the availability of all professional examinations in Welsh.  Welsh law schools must collaborate on Welsh medium legal education, especially as regards the provision of teaching materials. All coroner services should be available in the Welsh language.

10. Recommendations on devolution of justice

  • There should be legislative devolution of justice. Restrictions and reservations governing the Assembly’s power to legislate on all forms of justice, including policing and offender management and rehabilitation, should be removed, so that it corresponds more closely with the position of the Northern Ireland Assembly and the Scottish Parliament In tandem with the removal of reservations and restrictions on the Assembly’s powers, responsibility for executive functions in relation to justice in Wales should be transferred to the Welsh Government.
  • Devolution of justice must be accompanied by a full transfer of financial resources, including all identifiable administrative and capital resources relating to Wales.

11. Recommendations to be implemented under the current scheme of devolution

  • Clear and accountable leadership on justice in the Welsh Government must be established under the current scheme of devolution. The Assembly should take a more proactive role in appropriate scrutiny of the operation of the justice system.
  • The Welsh Government should address policy issues relating to justice by using external experts who can report jointly with civil servants to Ministers.
  • The Welsh Government and the legal sector should develop a joint leadership programme.
  • A Law Council of Wales should be established to promote the interests of legal education and the awareness of Welsh law, to ensure proper provision of teaching the law in Welsh, and to assist students in their education and training as future practitioners.
  • The organisation of the senior judiciary in Wales should be changed to provide the necessary working relationships and leadership within Wales.  Wales should be put in a similar position to Scotland and Northern Ireland in the Supreme Court as regards the appointment of judges to the Supreme Court.

12, Recommendations for implementation with legislative devolution

  • With legislative devolution, there must be a new Justice Department in the Welsh Government led by a Cabinet Minister.
  • The office of Counsel General should continue as an office that provides independent legal advice to the Welsh Government and heads the Government Legal Service in Wales.
  • Legislative devolution will require the establishment of a Justice Committee in the Assembly.
  • Where there is overlap between the roles of local, regional and national boards, committees and partnerships, they should be merged.
  • With legislative devolution, the governance arrangements for the police should be re-examined.
  • The law applicable in Wales should be formally identified as the law of Wales, distinct from the law of England.
  • The present system where legal practitioners can practise in England and Wales and the legal professions are jointly regulated should be continued.
  • Legislation should provide for a High Court and a Court of Appeal of Wales to be established by the Assembly.
  • With legislative devolution, a Welsh Courts and Tribunals Service should be developed from the base of a Welsh Tribunals Unit reformed on the model of the Scottish Courts and Tribunals Service.
  •  With legislative devolution, the Welsh Government will need to review, and keep under continuing review, the justice infrastructure for Wales.

13. Action to be taken now by the Welsh Government and the Assembly

  • The Welsh Government should begin the process of reform by listing the recommendations it will seek to implement whilst the current scheme of devolution continues. The Assembly should make arrangements to monitor and review the process of reform.

Reviewing the Criminal Legal Aid fee schemes

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There is increasing recognition that the criminal legal aid scheme is not delivering an adequate service for the Criminal Justice system. Practitioners have long argued that cuts have gone too far; there have been strikes, threats of strikes and last minute deals cobbled together to try to stop the wheels falling off the bus completely.

In December 2018 the Government announced that there would be a more fundamental review of the criminal legal aid scheme.

More detail about the scope of the review was announced in March 2019. Thus the review will consider criminal legal aid throughout the life cycle of a criminal case, including:

  • pre-charge advice at the police station, advice and advocacy services in the Magistrates’ Court and Youth Court, and advice and advocacy for prisoners
  • advice and litigation services in the Crown Court through the Litigators’ Graduated Fee Scheme (LGFS)
  • advocacy services in the Crown Court through the Advocates’ Graduated Fee Scheme (AGFS)
  • litigation and advocacy services for very high cost Crown Court cases though the Very High Cost Case (VHCC) Scheme

The review will also consider wider changes to the justice, social, economic, business and technological landscape that are impacting on the criminal legal aid system – including, but not limited to:

  • Her Majesty’s Court and Tribunals Service (HMCTS) reform, including the digitisation of the criminal trial process;
  • the Attorney General’s review of disclosure of evidence, and the need to prevent trials collapsing because of failure to disclose evidence; and
  • wider modernisation work being pursued by the Home Office and the police.

The Government has stated that the overall objectives of the review are:

(1) To reform the criminal legal aid fee schemes so that they:

  • fairly reflect, and pay for, work done
  • support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce
  • support just, efficient, and effective case progression, limit perverse incentives, and ensure value for money for the taxpayer
  • are consistent with and, where appropriate enable, wider reforms
  • are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies
  • ensure cases are dealt with by practitioners with the right skills and experience

(2) To reform the wider criminal legal aid market to ensure that the provider market:

  • responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer
  • operates to ensure that legal aid services are delivered by practitioners with the right skills and experience
  • operates to ensure the right level of legal aid provision and to encourage a diverse workforce.

The plan is to produce a report by the end of Summer 2020.

As part of this peogramme the Crown Prosecution Service has  been undertaking work to develop proposals for the remuneration of prosecution lawyers. It plans to finish this work by the end of September 2019.

As interim measures, the CPS has proposed changes to fees payable to prosecutors to be implmented from 1 Sept 2019. In addition, the Ministry of Justiice has agreed with the Criminal Bar Association and the Bar Council that the elements of the review will be accelerated:

  • consideration of the issue of unused material;
  • fees paid for cracked trials; and
  • uplifts in paper-heavy cases.

The intention is for interim proposals to be made by the end of September. The impact of the prorogation of Parliament and the possibility of a General Election may alter these timings.

Details about these developments may be found at:

For the overall review https://www.gov.uk/guidance/criminal-legal-aid-review#history

For the CPS work see https://www.cps.gov.uk/cps/news/proposal-between-crown-prosecution-service-ministry-justice-attorney-general-criminal-bar

 

 

Written by lwtmp

September 19, 2019 at 12:09 pm

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

 

 

 

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