Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 10’ Category

Exceptional case funding for legal aid

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For an interesting research report go to this note published by the UK Administrative Justice Institute:

Extending access to Exceptional Case Funding (ECF) through the work of university law clinics

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Written by lwtmp

May 16, 2018 at 11:35 am

Transforming the Justice system – case studies

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It is quite hard for those outside the justice system to know exactly what is going on with the overall transformation programme. But a source of really interesting material is Tribunals Journal published 3 times a year by the Judicial College. (I declare an interest – I have just been appointed to its editorial Board.)

The latest edition, published in December 2017, contains a number of interesting case studies on developments which are relevant to the transformation programme. The following items are particularly worth noting.

Lorna Findlay, who is an Employment Judge, was an early volunteer to receive training to entitle her to sit as a judge in the county court. ) One of the transformation programme’s central goals is the creation of ‘one judiciary’ whereby judges can be deployed to different areas of work.. The author describes the basic training she received and the shadowing she undertook before she started sitting as a District Judge on civil matters. Her overall impression was that the essential features of the judicial role were the same whether in the ET or in the county court.

She felt that her experience in the ET gave her more confidence in handling litigants in person, who appear more often in the tribunal, than some of her civil judicial colleagues. At the same time, she thought that procedural rules in the county court, which enable judges to give only brief summaries of key facts and grounds for decision, should be brought into the Employment Tribunal rules – ET decisions are currently notoriously and unnecessarily long in her view.

Sian Davies, another ET judge based in Wales, described a pioneering initiative to assist litigants in person. The aim was to find a way for the ET itself to be able to signpost litigants in person to sources of assistance that might help them frame and argue their cases. The obvious challenge is that the ET must not appear to be taking sides. But with the reduction in the availability of legal aid, the tribunal argued that new ways of trying to assist should be developed. One outcome has been the creation of an ET Litigants in Person Scheme, in which volunteers – acting pro bono – offer advice and assistance to parties before the tribunal. These are based in the London Central ET and Cardiff.

Meleri Tudur writes about the use of registrars and now tribunal case workers to undertake some of the more routine paperwork that historically had been undertaken by the judiciary. In some cases this had led to a significant reduction in the amount of time taken by judges on what is known as ‘box work’.

To me, these are all examples of initiatives designed to make the existing courts and tribunals service more responsive to the needs of users. Tribunals Journal should be essential reading, not just for the tribunal judiciary, but for those involved in the reform of the justice system.

The Winter 2017 number of Tribunals Journal can be found at https://www.judiciary.gov.uk/wp-content/uploads/2013/07/tribunals-journal-winter-2017.pdf

 

 

 

 

 

 

Money claims on line

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For many years it has been possible to start a small money claim by completing forms on-line and submitting them to the court.

In April 2018, following a pilot launched in July 2017, a new on-line process for making a money claim with a value of up to £10,000 (the current small claims limit)  has been launched, designed to be easier to use by potential claimants. Rather than having to fill in and post a paper form, or use the original on-line system which dated from 2002, the new pilot allows people to issue their County Court claim more easily, settle the dispute online and also recommends mediation services  (which can save time, stress, and money).

According to the Press Release announcing this decision “Early evidence [from the original pilot] suggests that the online system has improved access to justice as engagement from defendants has improved.”

At present, it seems that the only way that one can see how the new process works in practice is to go on-line and submit the details of a potential claim – this includes setting up a special account. What I think is urgently required is one of those ‘how to’ videos that are available on You Tube. (There are videos with this or similar titles but they don’t specifically refer to the new MoJ scheme.)

The press release announcing the development is at https://www.gov.uk/government/news/quicker-way-to-resolve-claim-disputes-launched-online.

If you would like to explore the money claim website more fully, it can be found at https://www.gov.uk/make-money-claim

 

RESOLVING CONSUMER DISPUTES: Alternative Dispute Resolution and the Court System

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Lawyers might think that a government research report with the above heading would/should have been published by the Ministry of Justice (MoJ). Would this not be a central theme in the Transforming the Justice System programme that is currently underway?

It may therefore come as a surprise that this is the title of a report commissioned and published by the Department for Business, Energy and Industrial Strategy (BEIS). In it consultants have looked at a number of contexts in which consumers may seek to obtain redress for problems they have with traders or other service providers.

The report seems to have been written with no account taken of the not inconsiderable body of work already done on the use of ADR in England and Wales (e.g. the reports by Professor Dame Hazel Genn). There is no reference to the court transformation programme. There is one reference to the Civil Justice Council (though not to its relatively recent paper on ADR). It is as though BEIS and MoJ are living in separate if not parallel universes, with no communication between them.

This may of course be deliberate. It is possible to imagine that BEIS – who have responsibility for promoting business and protecting consumers – have become fed up with the slow place of change in the use of ADR in the court system and want to charge ahead with their own initiatives.

What is interesting, however, is to see just how pervasive the use of ADR mechanisms are in the UK. The report sets out a list of 95 bodies who offer differing forms of ADR for the resolution of complaints and disputes. And there is an intriguing footnote citing more recent research, undertaken by Citizen’s Advice, which reveals that the total number of such scheme is approaching 150.

From the data they collected, the researchers suggest that ADR is quicker and cheaper than the courts; that those who use either the courts or ADR are in general, older, better off and better educated than consumers taken as a whole; and that these groups are in general better informed about the existence of different forms of ADR.

It is not the function of this report to argue that either use of ADR or use of the courts is to be the preferred method for resolving consumer disputes. But the researchers do, at the end, list a number of ‘indicators’ that could be used for ongoing monitoring of the use of ADR. This suggests to me that BEIS might hope to find over the years greater consumer awareness of and use of ADR schemes for the resolution of consumer disputes.

What the policy outcomes of this study will be are hard to discern from the present document. One may guess that, for modest-value disputes, use of different forms of ADR will steadily grow. What is surprising is the apparent lack of contact with others working on the reform of civil justice.

The report can be found at https://www.gov.uk/government/publications/resolving-consumer-disputes-alternative-dispute-resolution-and-the-court-system

(I am grateful to Walter Merricks, CBE, for drawing the existence of this report to my attention.)

 

 

 

 

 

 

Post-legislative scrutiny : LASPO 2012

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The concept of the post-legislative scrutiny was introduced in 2008, following a report on the idea, published by the Law Commission in 2006.

Now called ‘Post Implementation Review’, the Government has decided to subject Part 1 of the  Legal Aid, Sentencing and Punishment of Offenders Act, 2012 (LASPO) to such a review. This is the part of LASPO which deals with legal aid.

The effect of LASPO was to make significant cuts to the provision of legal aid in England and Wales. There have been many calls – from the legal profession, from the judiciary and from those working in the advice sector, among others –  for those cuts to be reversed.

The Low Commission (2014) and the Bach Commission’s Report (2017) argued that the cuts had led to legal advice deserts and were having an adverse impact on the citizens’ access to justice.

The Government has recently (March 2018) set out the terms of reference for what it calls the ‘consultation’ phase of the LASPO review and has invited the submission of evidence on the impact of the 2012 changes.

The process is currently being monitored by the Select Committee on Justice. It has recently published correspondence with the Secretary of State for Justice.

It may also be noted that criminal legal aid barristers are currently threatening strike action on the impact of changes to the rates of pay they receive for doing criminal legal aid work.

It is likely that many of the submissions to the review will argue for the restoration of cuts imposed 5 years ago.

My view is that a roll-back to the pre-LASPO position is extremely unlikely. More likely is  a renewed emphasis on ways of improving the provision of front-line advice, to try to enable more people to undertake legal work for themselves. There will also be an emphasis on new processes for handling legal disputes which might be easier for people to operate themselves.

It would be nice to think that the innovative ideas of the Low Commission for a new National Strategy for Advice and Legal Support would be put in place, supported by its proposed National Advice and Legal Support Fund. But, in the absence of strong lobbying from the public in favour of these ideas, I have my doubts as to whether these will gain political traction.

For the terms of reference of the consultation, see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/686576/pir-laspo-terms-of-reference.pdf

The Select Committee on Justice is at https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/.

 

 

 

 

 

 

 

 

 

Written by lwtmp

March 24, 2018 at 4:35 pm

Innovation in the provision of legal advice

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Lawyers do not always get a good press. But an interesting paper, recentlypublished by the Human Rights Group JUSTICE (I declare an interest – I am a member of its Council), shows that there are many who still want to deliver legal services to the most disadvantaged people in our society.

In Innovations in personally-delivered advice: surveying the landscape the paper takes a look at how dedicated lawyers and others in the advice sector have sought to devise new ways of delivering advice to members of the public. The cuts to Legal Aid have not deterred them from wanting to provide a public service.

The importance of these services was stressed both in the Low Commission report in 2015, and the Bach report in 2017 – both of which called for their development. What the JUSTICE report shows is how, in a time of austerity, it is still possible to offer at least some services in new an innovative ways.

A number of important points emerge from the survey:

  1. First is that taking legal advice to places where those who might want that advice go might be more effective than expecting people to come into solicitors’ offices. Thus the report gives examples of outreach work being undertaken in doctors’ surgeries, foodbanks, prisons, ‘pop-up’ clinics in libraries, branches of Tesco, and university Law Clinics.
  2. Second, providers may need to consider new partnerships with both the private and charitable sectors to fund new initiatives. The report gives examples of new partnerships with the private sector (e.g. banks – offering advice on debt ) and the charitable sector (e.g. Dementia UK offering advice for dementia sufferers and carers). Moves towards greater corporate social responsibility may offer new opportunities for innovation.
  3. Thirdly, the report gives examples of advice providers taking advantage of the new rules on Alternative Business Structures to develop new ways of delivering face-to-fact advice services. For example, with Gateshead Enterprises’ Job Law, “the first consultation is free and any further advice required is on a ‘pay as you go’ basis”;  the chargeable advice is half price; and any profits are channelled directly back into Citizens Advice Gateshead to ensure it can continue its work.

This is not designed to be a comprehensive report on everything that is happening in the advice sector. But, given how easy it is to assume from the media that the cuts in legal aid and other sources of funding for the advice sector have almost destroyed the advice sector, I think it important to know that dedicated individuals continue try to deliver a service to those who most need such services. The examples given in this paper show that the green shoots of innovation are, if not yet flourishing, beginning to emerge from a very hard economic climate.

I hope the examples given here will inspire others to bring forward their own ideas and initiatives.

The JUSTICE report is available at https://justice.org.uk/innovations-personally-delivered-advice-surveying-landscape/

Written by lwtmp

March 6, 2018 at 5:19 pm

Reviewing the Legal Aid, Sentencing and Punishment of Offenders Act 2012

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In 2008, the then Labour Government announced its support for  the concept of post-legislative scrutiny of legislation. It stated that “the basis for a new process for post-legislative scrutiny should be for the Commons committees themselves, on the basis of a Memorandum on appropriate Acts submitted by the relevant Government department, and published as a Command paper, to decide whether to conduct further post-legislative scrutiny of the Act in question.”

The Ministry of Justice has just (October 30 2017) published a post-legislative memorandum on the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which it has sent to the Justice Select Committee. While much of the document seeks to explore the extent to which Government objectives in introducing the legislation have or have not been met, it also draws together a number of important other reports which have commented more critically on the effect of LASPO. These include, for example, the reports of the Low Commission,  and the Bach Commission’s report on a Right to Justice (both noted in this blog). It also refers to other reports, e.g. from the National Audit Office, and the Equality and Human Rights Commission, and reports from a number of other Parliamentary Committees. It also notes how the Government has responded to a number of legal challenges that were made to LASPO. The response of the Justice Committee is not yet known.

Whether or not the Committee pursues its own post-legislative scrutiny, it is important to note that, in the memorandum, the Government confirms that in the course of the coming months it will undertake two more analytical reviews of aspects of LASPO, relating to,

  1. the changes to the Legal Aid scheme, and
  2. the changes to rules on the funding of litigation.

This will provide an opportunity for critics of LASPO to make their arguments and might lead to further thought being given to the ideas set out in the Low  and Bach Commissions’ reports.

It will also provide the opportunity to reflect on the changes resulting from Lord Justice Jackson’s review of Costs and his 2017 Supplementary Report (also noted in this blog).

The text of the memorandum is at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/655971/LASPO-Act-2012-post-legislative-memorandum.pdf

 

 

Written by lwtmp

October 31, 2017 at 11:35 am