Archive for the ‘Chapter 10’ Category
Keeping up to date with the Transformation of our Justice System project
I have commented before that it is quite hard for those outside Government and the Judiciary to keep abreast of developments with the Transformation project. Occasional blog items from HM Courts and Tribunals service are useful but don’t necessarily pick up all that is going on.
I therefore welcome the announcement that from June there is to be a monthly e-bulletin devoted to the programme. Those interested are able to subscribe to the service, thereby receiving regular updates.
The first edition is available at https://content.govdelivery.com/accounts/UKHMCTS/bulletins/1f03e7b
Exceptional case funding for legal aid
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
Transforming the Justice system – case studies
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
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
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 schemes 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
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/.
Innovation in the provision of legal advice
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:
- 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.
- 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.
- 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/
Reviewing the Legal Aid, Sentencing and Punishment of Offenders Act 2012
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,
- the changes to the Legal Aid scheme, and
- 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
The Right to Justice: Final Report of the Bach Commission
In September 2017, the Bach Commission (chaired by Lord Willy Bach) published its report on the Right to Justice. The Commission was established at the end of 2015 to find solutions that will restore access to justice as a fundamental public entitlement.
The commission found that the justice system is in crisis. Most immediately, people are being denied access to justice because the scope of legal aid has been dramatically reduced and eligibility requirements made excessively stringent. But problems extend very widely through the justice system, from insufficient public legal education and a shrinking information and advice sector to unwieldy and creaking bureaucratic systems and uncertainty about the future viability of the practice of legal aid practitioners.
Covering many of the same issues as the Low Commission (which reported in 2014) this report makes the following specific recommendations.
The commission has concluded that the problems in the justice system are so wide-spread that there is a need for a new legally enforceable right to justice, as part of a new Right to Justice Act. This Act would:
- codify existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford;
- establish a set of principles to guide interpretation of this new right covering the full spectrum of legal support, from information and advice through to legal representation;
- establish a new body – the Justice Commission – to monitor and enforce this new right.
The purpose of the Right to Justice Act is to create a new legal framework that will, over time, transform access to justice.
In addition, early government action is also required.
- Legal aid eligibility rules must be reformed, so that the people currently unable either to access legal aid or to pay for private legal help can exercise their right to justice.
- The scope of civil legal aid, which has been radically reduced, must be reviewed and extended. In particular, all matters concerning children should be brought back into the scope of legal aid.
- An independent body that operates the legal aid system at arm’s length from government should replace the Legal Aid Agency and action must be taken to address the administrative burdens that plague both the public and providers.
- Public legal capability must be improved through a national public legal education and advice strategy that improves the provision of information, education and advice in schools and in the community.
My own view is that there is a growing consensus that the cuts to legal aid have gone too far. I have doubts whether there will be a wholesale return to the legal aid system that existed before the programme of cuts that has been going on for the best part of a decade.
This is potentially an important area of policy making. However, when considering new policies:
- more attention should be given to new ways of delivering legal services, embracing new technologies that would allow more to be provided for less;
- greater consideration of alternative sources of funding for the provision of legal advice and assistance, especially through different forms of insurance;
- the legal needs of small and medium size business should be treated as seriously as the legal needs of individuals, and
- there should be a recognition that there is scope for ‘do-it-yourself’ lawyering.
The Bach report may be downloaded from http://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission_Right-to-Justice-Report-WEB.pdf
The Report of the Low Commission is at https://www.lowcommission.org.uk/dyn/1389221772932/Low-Commission-Report-FINAL-VERSION.pdf together with a follow up report, published in 2015 at https://www.lowcommission.org.uk/dyn/1435772523695/Getting_it_Right_Report_web.pdf
Review of Civil Litigation Costs: Supplementary Report – Lord Justice Jackson
When Lord Woolf started out on his major programme of reform of the Civil Justice system – which came into effect with the introduction of new Civil Procedure Rules in 1999 – he was concerned about a wide range of issues. The most intractable of the problems he identified was how could the costs of litigation be kept proportionate to the subject matter and value of the dispute.
While there was considerable agreement that many of the changes he recommended had worked well, his proposals on the control of costs had not been as successful as they should have been.
Thus in 2009, Lord Justice Jackson was asked to undertake more work on the costs of civil litigation. His first report on the issue was published in 2010. (Noted in this blog in March 2010)
In 2016, Jackson was asked to revisit this topic, on which he has now published (July 2017) this supplementary report.
As Jackson notes:
In England and Wales, the winning party in litigation is entitled to recover costs from the losing party. The traditional approach has been that the winner adds up its costs at the end and then claims back as much as it can from the loser. That is a recipe for runaway costs.
He therefore argues (as indeed he did in his first report) that there are two fundamental ways to prevent runaway costs.
(i) a general scheme of fixed recoverable costs , i.e. those costs that the winning party can claim from the losing party;
(ii) imposing a budget for each individual case (“costs budgeting”)
Although fixed recoverable costs (FRC) had been introduced for limited categories of cases before he reported in 2010, he recommended that FRC should be introduced for all fast-track cases. In its response to his first report, the Government did not at the time go that far.
The introduction of costs budgeting was also regarded initially by the legal profession as very controversial, and was not universally welcomed. In this later report, however, evidence from witnesses to his review stated that the system for costs budgeting had now settled down and was widely seen to be working pretty well.
At the heart of this review, there are the following recommendations:
- FRC should be introduced for all fast track cases. The amount of costs which are recoverable are laid out in a grid. Different sums are permitted for different stages of proceedings.
- Above the fast track, Jackson recommends the creation of a new ‘intermediate’ track for certain claims up to £100,000 which can be tried in three days or less, with no more than two expert witnesses giving oral evidence on each side. The intermediate track will have streamlined procedures and its own grid of FRC.
- Clinical negligence claims are often of low financial value, but of huge concern to the individuals on both sides. The complexity of such cases means that they are usually unsuited to either the fast track or the proposed intermediate track. For these Jackson recommends that the Department of Health and the Civil Justice Council should set up a joint working party with both claimant and defendant representatives to develop a bespoke process for handling clinical negligence claims up to £25,000. That bespoke process should have a grid of FRC attached. This scheme will capture most clinical negligence claims.
- In relation to business cases, Jackson states that it is essential that small and medium-sized enterprises should have access to justice. The Federation of Small Businesses argued that there should be an FRC regime for commercial cases up to £250,000; the costs levels must be reasonable; they must balance incentives and “reduce the costs of going to law for small businesses”; there must be rigorous case management of cases subject to this regime; and there must be investment in modern IT systems to speed up court processes. Jackson does not think that all business cases require FRC up to the level suggested by the Federation. Instead he recommends a voluntary pilot of a ‘capped costs’ regime for business and property cases up to £250,000, with streamlined procedures and capped recoverable costs up to £80,000. If the pilot is successful, the regime could be rolled out more widely for use in appropriate cases.
- Jackson recommends measures to limit recoverable costs in judicial review claims, by extending the protective costs rules which are currently reserved for environmental cases. As he observes: Citizens must be able to challenge the executive without facing crushing costs liabilities if they lose.
- In relation to costs management, the budgeting process will continue to apply to proceedings falling outside the scope of FRC. One problem is that costs management cannot currently apply to costs incurred before the costs management process takes place. Jackson thinks that at some point further consideration may need to be given to setting a limited to these incurred costs, but that should not be considered further at this stage.
It is not known what the response of Government to these proposals will be. Any changes would be subject to further consultations.
The 2017 Jackson review may be accessed at https://www.judiciary.gov.uk/wp-content/uploads/2017/07/fixed-recoverable-costs-supplemental-report-online-2-1.pdf
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 