Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 10’ Category

Post-implementation review of Legal Aid, Sentencing and Punishment of Offenders Act 2012, Part 2 (The ‘Jackson’ reforms on costs)

leave a comment »

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

 

 

 

 

Advertisements

Written by lwtmp

March 10, 2019 at 1:45 pm

Legal support – the way ahead? How much vision?

leave a comment »

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

leave a comment »

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)

leave a comment »

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

Standards of Criminal Advocacy: reports from the Solicitors Regulation Authority and the Bar Standards Board

leave a comment »

In November 2015, I noted in this blog the critical report by Sir Bill Jeffrey on standards of criminal advocacy. I also noted the consultation paper on the subject issued by the Government.

In June 2018, the SRA and the BSB published two reports on the subject.

The first report explores the views of the judiciary on the current quality, provision and regulation of advocacy within the criminal courts. The Judicial Perceptions Report, involved in-depth interviews with 50 High Court and circuit judges.

Key findings were:

  • While judges viewed the current quality of advocacy as competent, some felt that standards were declining in some areas, especially in relation to core courtroom skills such as case preparation and dealing with some witnesses.
  • Advocates’ skills in dealing with young and vulnerable witnesses are largely improving.
  • The most commonly cited barrier to high quality advocacy was advocates taking on cases beyond their level of experience.
  • Judges were uncertain over when, and how, they should report poor advocacy to regulators.

The second report arose from a Thematic Review of Criminal Advocacy, undertaken by the SRA. It was informed by data gathering and interviews with 40 solicitors’ firms actively involved in providing advocacy by solicitors within the courts.

Key findings of the SRA’s thematic review included:

  • Firms use in-house solicitors to support the vast majority of criminal work in magistrates’ courts and youth courts (90 percent), and 29 percent of work in the Crown Court.
  • The solicitors’ advocacy market is dominated by smaller firms and increasingly ageing individuals, while the number of new entrants to the market is falling.
  • Levels of complaints regarding advocacy work are relatively low (22 recorded complaints in two years across all 40 sample firms).
  • Approaches to training are inconsistent, with its delivery often infrequent, limited or not planned.

To me, the most concerning finding is that those doing this work are aging and are not currently being replaced by younger colleagues. It may be assumed that the cuts to criminal legal aid have had an impact on this.

Building upon the findings of both reports the SRA will be undertaking further work to understand the work of solicitor advocates.   The Bar Standards Board also intends to publish its strategy for assuring the quality of advocacy shortly.

The reports can be accessed at https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/regulators-publish-reports-into-criminal-advocacy-standards/

or https://www.sra.org.uk/sra/how-we-work/reports/criminal-advocacy.page

 

 

 

Written by lwtmp

October 15, 2018 at 4:02 pm

Post-implementation review of LASPO Part 2: the Jackson Reforms

leave a comment »

I have noted elsewhere the fact that the Government has started a post-implementation review of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). (See this blog, March 2018 and September 2018).

The principal focus is on changes to the legal aid scheme – Part 1 of the Act.

Part 2 of the Act introduced changes to the costs rules relating to civil litigation proposed in the review led by Lord Justice Jackson.

Progress with this review has been slower than with the legal aid review. But in June 2018, the Government published a short statement on how it thought the changes were going, and set out a number of questions on which it sought evidence from practitioners and other civil justice stakeholders.

The focus of the inquiry is on the five principal reforms contained in the Act. They are

  • (i) non-recoverability of Conditional Fee Agreement success fees;
  • (ii) non-recoverability of After the Event insurance premiums,
  • (iii) the introduction of Damages-Based Agreements,
  • (iv) section 55 changes to Part 36 offers to settle proceedings,
  • (v) banning referral fees in personal injury cases.

The preliminary view of officials is that while their introduction was very contoversial, they are working pretty well in practice.

In June 2018, the Government has published an initial assessment together with a list of questions to which it hopes practitioners will respond during the summer of 2018. A further report will be published in due course.

The document is available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/719140/pir-part-2-laspo-initial-assessment.pdf

 

 

 

 

Written by lwtmp

September 15, 2018 at 3:29 pm

Post-implementation Review: Legal Aid – progress report

leave a comment »

The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) was a multi-faceted piece of legislation, dealing with a number of issues of great importance to the English Legal System. Part 1 of the Act made provision for major cut-backs in the provision of legal aid. This is now the subject of a Post-Implementation Review (PIR), being conducted by the Ministry of Justice.

A Post-Legislative Memorandum on LASPO was written and published by the Ministry of Justice in October 2017. This set out preliminary views on how the Government thought the reforms were working. This was to be the first step to further inquiry.

I noted the launch of the PIR into Part 1 of LASPO here in March 2018. A brief progress report was published by the Ministry of Justice in June 2018.

This stated, in part,

Ministry of Justice (MOJ) officials have led consultative groups formed from organisations and academics representing a cross section of the justice system. These meetings took place in April 2018 and focused on the four themes:

  • criminal justice,
  • family justice,
  • civil justice and
  • the advice and third sector. ..

Further consultative group meetings have been scheduled later in the year with a focus on how individuals navigate through the justice system at present.

In addition, the review team have been meeting a wide variety of interested parties on an individual and small group basis, in order to gather a broad range of evidence of the impact of the changes to the provision of legal aid made under LASPO. Through all forms of engagement, the review team has so far met with over 50 organisations in order to discuss the impact of LAPSO and many more meetings are planned for the coming months.

Alongside meetings with interested parties and to ensure our review is as informed as possible, the review team is also accepting submissions of evidence.

The deadline for the submission of evidence is this month (September 2018).

It seems unlikely that the final decisions arising from the review will be published before 2019. I stick to my prediction that major change to the legal aid scheme is unlikely to be an outcome of the review, but I would be happy to be proved wrong!

It may also be noted that the Justice Committee has published a report on the impact of changes to the criminal legal aid scheme on practitioners. This urges a full review of Criminal Legal Aid, to start no later than March 2019, to be informed by the work currently being undertaken in the PIR. The Government has yet to respond to this report.

 

The Post-Legislative Memorandum is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/655971/LASPO-Act-2012-post-legislative-memorandum.pdf

For the PIR update, see https://www.gov.uk/government/publications/post-implementation-review-of-laspo

For the Select Committee report on Criminal Legal Aid, see https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news-parliament-2017/criminal-legal-aid-report-published-17-19/