Archive for the ‘Chapter 10’ Category
Dealing with whiplash injuries: the Prisons and Courts Bill 2017
For some time the Government (under pressure from the Insurance industry) has been concerned about the numbers of claims and the aggregate amount of those claims for minor injuries arising from Road Traffic Accidents.
Between November 2016 and January 2017 the Government consulted on a package of measures to tackle the continuing high number and cost of whiplash claims and their impact on motor insurance premiums.
The Government’s concern was that the volume of road traffic accident related personal injury claims has remained static over the last three years and is over fifty per cent higher than 10 years ago (460,000 claims registered in 2005/06 28 compared with 770,000 in 2015/16) despite a reduction in the number of road traffic accidents reported to the police and improvements in vehicle safety, for example better head restraints.
It was noted that similar improvements in vehicle safety in other jurisdictions have led to a reduction in both the number of claims and motor insurance premiums.
The Government’s view is that the continuing high number of low value claims increases the cost of motor insurance premiums, paid by motorists in England and Wales. The Government has set out its view that the level of compensation paid to claimants for these claims is also out of proportion to the level of injury suffered. It has therefore decided to introduce measures to disincentivise minor, exaggerated and fraudulent claims.
Part 5 addresses this matter.
Clause 62 enables the Lord Chancellor to specify in regulations, in the form of a tariff, the damages that a court may award for pain, suffering and loss of amenity (“PSLA”) for relevant whiplash injuries sustained in road traffic accidents, in those cases where the duration of the injury does not exceed or is not expected to exceed two years. The tariff will provide for an ascending scale of fixed sum payments with the relevant tariff for a particular case identified by reference to the severity of the injury. Regulations may specify different sums for different descriptions of injury.
There will be power to deviate from the tariff in exceptional circumstances.
Clause 64 bans regulated persons (basically solicitors and barristers, legal executives and alternative business structures) from making or accepting a payment in settlement, or inviting, or offering to settle an RTA related whiplash claim without appropriate medical evidence.
Whether these changes will actually lead to any reduction in insurance costs is currently hard to determine, particularly given other recently announced changes that may result in a general increase in awards of damages for personal injury.
Paying for criminal defence advocacy
Relations between Government and the Criminal Bar have not, in recent years been characterised by a great deal of warmth and mutual understanding. Indeed, criminal barristers went on strike recently against what they regarded as unfair policy on legal aid remuneration.
I am sure it would be overstating things to say that peace has now broken out between the Government and the Criminal Bar. But a new Consultation Paper on the remuneration of criminal defence advocates (including solicitor advocates) has been published which seems to be the fruit of close working relationship between the two sides.
Certainly the chairman of the Bar Council has welcomed the paper’s publication and has urged advocates to support the recommendations set out in the paper.
One of the key aims of the new proposals is to try to ensure that payments reflect actual work done by advocates on behalf of their clients.
The proposals also seek to reflect the changing nature of criminal trial practice as the criminal courts’ efficiency programme continues to develop.
The proposals also aim to give a sense of career progress to those who undertake criminal defence advocacy. Pay should be higher as experience is gained and more serious cases are undertaken.
The recommendations are not based on any increase in the amount of money available for paying advocates; but they are designed to be a rational response to the changing face of criminal advocacy and to take a fresh look at a payments system that was last looked at 20 years ago.
The details of the consultation – which runs till early March 2017, are at https://www.gov.uk/government/news/proposals-to-reform-criminal-defence-advocates-pay-published
Review of fixed recoverable costs
One of the central recommendations of Lord Justice Jackson’s 2010 Review of civil litigation procedures and costs was greater use of fixed recoverable fees. The principle of fixed costs had been advanced by the Civil Justice Council for a number of years; indeed they helped to negotiate an agreement that this was the way forward for certain low vale Road Accident claims. Jackson wanted to go further and apply the principle of fixed costs to a wider range of types of case and to cases of higher value. He has continued to advocate the need for many more cases to come within the fixed costs regime – in his view, cases up to £250,000.
Now the senior judiciary (The Lord Chief Justice and the Master of the Rolls) have commissioned Lord Justice Jackson to undertake a further exercise to test the practicability and wisdom of his ideas. His review has been given the following terms of reference:
- To develop proposals for extending the present civil fixed recoverable costs regime in England and Wales so as to make the costs of going to court more certain, transparent and proportionate for litigants.
- To consider the types and areas of litigation in which such costs should be extended, and the value of claims to which such a regime should apply.
- To report to the Lord Chief Justice and the Master of the Rolls by the 31st July 2017
It seems highly likely that this exercise will lead to an extension of the existing fixed costs regime.
For details of the announcement see https://www.judiciary.gov.uk/announcements/senior-judiciary-announces-review-of-fixed-recoverable-costs/
Unregulated providers of legal services
Not all legal services are provided by lawyers or legal executives who are regulated by their professional bodies. There is a group of legal service providers who are not authorised and regulated under any legal sector specific legislation, but who are providing legal services for profit and as a significant focus of their work.
The Legal Services Board has recently (June 2016) published research on the work of this sector of the legal service market. The research looked in detail at will-writing, online divorce and intellectual property.
The Key Findings of the research were:
- For profit unregulated providers make up a small proportion of the legal services market. In the individual legal needs survey, they represented 4.5-5.5% of cases in which consumers paid for advice or representation.
- In contrast, not for profit providers, most of whom will be unregulated, accounted for approximately 37% of all legal problems where advice was sought.
- Benefits for consumers include lower prices and greater price transparency compared to regulated providers, innovation and service differentiation, and competitive impact on regulated providers.
- The main risks to consumers relate to consumers not making informed choices and misleading advertising claims. The research did not assess the technical quality of work.
- Consumer satisfaction with customer service is broadly comparable across regulated and unregulated providers – 84% versus 81% respectively.
- More than half of consumers who instruct for profit unregulated providers are aware of their regulatory status. Of those who don’t check, a significant proportion do not do so because they assume that they are regulated.
- There is a limited potential market for voluntary regulation beyond existing trade associations given the size of the market and low appetite for such initiatives among providers.
For the time being, at least, the policy conclusions for the Legal Services Board are that
- The for profit unregulated sector is smaller than expected, although in some segments these providers have gained a significant market share.
- Based on the evidence of benefits and risks to consumers and limited potential market for voluntary regulation beyond existing trade associations, the LSB will monitor developments but will not pursue a voluntary arrangement under the Legal Services Act.
- Consumers should be encouraged to check whether or not providers are regulated.
In other words no active intervention for the moment.
Notwithstanding these broad conclusions, the research did look more closely at the work of for profit unregulated providers in three areas: will-writing; divorce; and intellectual property, where not insignificant amounts of legal services work was being undertaken by unregulated providers – around 10% of the work. The dominance in the area of divorce by 5 on-line companies offering very cheap services can be particularly noted.
My guess is that, so long as the unregulated sector provides cost-effective services, with which consumers are satisfied, the lack of regulation will continue. But if there is a highly publicised scandal, then the regulatory context will change.
For the research go to https://research.legalservicesboard.org.uk/wp-content/media/Economic-insight-in-depth-unregulated-research.pdf
Creation of a Contingent Legal Aid Fund?
Ideas for new ways of funding cases for persons of moderate means have been floating around for a number of years. JUSTICE produced a report on the matter as long ago as 1978. The Bar Council returned to the issue in 2008/9 when a policy group, chaired by Guy Mansfield QC, made proposals for the establishment of such a scheme. And suggestions for the creation of a scheme were made to Lord Justice Jackson’s Review of the Costs of Civil Litigation.
In that report, he did not make a definitive recommendation, but he did propose that the Government should undertake further modelling work to see whether a financially viable scheme could be created.
With recent cuts to the publicly funded legal aid scheme, Lord Justice Jackson has returned to the issue in a speech delivered in February 2016. He notes that such a scheme has successfully operated in Hong Kong for a number of years; and that similar schemes also operate in a number of Australian states.
A CLAF would not offer funding in all cases; it would have to be very selective in the cases it took on. As Lord Justice Jackson noted, it would – in effect – be a not-for-profit third party funding scheme. The idea provokes many questions:
- where would the initial seed corn money come from?
- how would the fund be sustained?
- who would decide which cases to support?
- would the introduction of such a scheme require changes to the normal principle that a loser pays the costs of the winner?
In his lecture, Lord Justice Jackson argues that the time has not come for more detailed work to be done on this issue and argues at the legal profession – the Bar, the Law Society and the Chartered Institute of Legal Executives – should come together an develop proposals.
Whether the legal profession will rise to the Jackson challenge is not at present clear – but it is an issue worth keeping an eye on.
To read the Jackson lecture, visit https://www.judiciary.gov.uk/wp-content/uploads/2016/02/lj-jackson-speech-clf-160202.pdf
More fixed costs in civil litigation?
Lord Justice Jackson is indefatigable. He has not abandoned the issue of the cost of litigation on which he produced a major report at the end of 2009. Since then the Government has taken steps to implement some of Jackson’s proposals. But in his opinion, these have not yet gone far enough. So he has taken a recent opportunity to argue that now is the time for much greater use of fixed costs in the course of litigation.
He set out his views in a lecture delivered in January 2016. You can read the lecture at https://www.judiciary.gov.uk/wp-content/uploads/2016/01/fixedcostslecture-1.pdf
It is not yet known how far the Government is likely to take his proposals, but with the ferment of reforms currently surrounding the civil justice system (among others) it is reasonable to suppose that at least some further extension of fixed costs will be introduced in the not too distant future.
Criminal legal aid changes – recent decisions
It is, to me, one of the curiosities of public life that U-turns are usually portrayed in the mass media as a sign of official/political incompetence. To me the idea that someone might change their mind because they had had second thoughts is a sign of maturity and intelligence.
Whether you regard the Secretary of State for Justice as incompetent or intelligent and mature, there is no doubt that his recent written statement to the House of Commons on the change of direction on Criminal Legal Aid reform is important.
The issues are:
1 Reductions in fees paid to legal aid applicants. They had been reduced in March 2014 by 8.5%. A similar sized reduction was planned for July 2015, but this was put on hold while the MoJ did not work to ensure that such a cut would be unlikely to reduce the quality of criminal advocacy. In his January 2016, Michael Gove has announced that there will be a further postponement of the proposed cut. “I have also decided to suspend, for a period of 12 months from 1 April 2016, the second fee cut which was introduced in July last year.” Whether or not that fee cut will be brought back into effect in April 2017 will depend on how the market for the provision of criminal legal aid services has developed in the meantime.
2 Consolidation of provision of criminal legal aid. There has long been a view in Government that there are too many soicitors’ firms offering criminal legal aid services. Various proposals have been made to reduce their number. The most draconian proposal was that existing criminal legal aid contract should be replaced by new contracts that would be awarded, following a tendering process, in which contracts would be awarded to those firms who submitted the lowest bids for legal aid work.
Unsurprisingly this was fiercely resisted by solicitors on the basis that, if implemented, this would be a ‘race to the bottom’ – standards would fall because services would only be offered by those charging the least.
Mr Gove’s predecessor, Chris Grayling, came up with an alternative plan, known as ‘dual contracting’. Under the dual contracting system, two types of contract were to be awarded to criminal legal aid firms.
- An unlimited number of contracts for ‘own client’ work based on basic financial and fitness to practise checks – in others words continued payment for representing existing and known clients.
- And a total of 527 ‘duty’ contracts awarded by competition, giving firms the right to be on the duty legal aid rota in 85 geographical procurement areas around the country, with between 4 and 17 contracts awarded in each. In other words, these contracts would allow a limited number of firms the chance to represent new entrants to the criminal justice system.
The dual contracting model was designed to meet concerns expressed by the legal profession about price competition.
A tender process under this proposed scheme did go ahead, but ended very badly with a lot of adverse publicity about both process and outcome.
The primary arguments against these alternative proposals were
- Many solicitors firms feared that the award of a limited number of “dual” contracts – with a restriction therefore on who could participate in the duty legal aid rota would lead to a less diverse and competitive market.
- Many barristers feared that the commercial model being designed by some solicitors’ firms would lead to a diminution in choice and potentially quality.
- And, possibly the most compelling argument, many also pointed out that a process of natural consolidation was taking place in the criminal legal aid market, as crime reduced and natural competition took place.
In the face of considerable potential litigation (99 cases in the pipeline, plus a judicial review challenging the whole process), the Government has announced that this exercise will also be set aside. There will be a further review of the process towards consolidation early in 2017.
3 Quality of criminal advocacy. In the midst of all this, the report from Sir William Jeffrey on how to enhance the quality of criminal advocay has not been forgotten. Mr Gove stated:
I will also bring forward proposals to ensure the Legal Aid Agency can better support high quality advocacy. Furthermore, I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system. More details will follow in due course.
I don’t think that criminal legal aid practitioners are completely off the hook as regards potential changes to how they work. But for the immediate future, things are clearer.
For Mr Gove’s written statement, go to https://www.gov.uk/government/speeches/changes-to-criminal-legal-aid-contracting.
For further information on the Jeffrey Review, see this blog at https://martinpartington.com/2015/11/05/enhancing-the-quality-of-criminal-advocacy/
Regulation of the Legal Profession: Competition and Markets Authority gets in on the act
After the regulatory upheavals which led up to the Legal Services Act 2007 and the creation of the Legal Services Board, lawyers might have been forgiven for thinking that the regulatory playing field might be left untouched for a bit. But no. The Competition and Markets Authority announced in January 2016 that it was going to take a close look at competition in legal services provision by launching what is called a Market Study.
The Press release of the annoucement states:
The Competition and Markets Authority (CMA) will examine long-standing concerns about the affordability of legal services and standards of service. Concerns have also been raised about the complexity of the current regulatory framework.
In light of these concerns, the CMA’s market study plans to examine 3 key issues:
- whether customers can drive effective competition by making informed purchasing decisions
- whether customers are adequately protected from potential harm or can obtain satisfactory redress if legal services go wrong
- how regulation and the regulatory framework impact on competition for the supply of legal services
The announcement also stated: According to recent surveys … around one in ten users of legal services in England and Wales have said that the overall service and advice provided to them was poor value for money …, [and] amongst small businesses, only 13% said they viewed lawyers as cost-effective and around half agreed that they used legal service providers as a last resort to solve business problems.
The outcomes of a Market Study are very varied, and may range from a finding that all is well and that no further action need be taken, to a full scale investigation into the particular market.
The time line for the present study is that after a very short consultation (ending early Feb 2016) an interim report will be published in July 2016, with a final report at the end of the year.
For further information go to https://www.gov.uk/government/news/legal-services-study-launched-by-cma
This also provides links to some of the reports on which the case for launching the Market Study is based.
Divorce on-line: a cautionary tale
There is much talk, excitement even, at the prospect of the court system at last taking steps to embrace on-line technologies to increase efficiency in the process of resolving disputes.
There are already a number of proceedings that can be started on-line, such as possession proceedings and money actions.
The family courts are also engaged in these developments. But just before Christmas 2015 a problem was identified with one of the on-line forms that can be used – Form E.
Form E is the form on which parties in divorce, dissolution, nullity or judicial separation proceedings disclose information about their assets and liabilities. One feature of the Form is that is has a calculator built in which calculates a figure which judges can then use to judge any financial settlement.
This fault that was discovered meant that the automatic calculator in the form calculated the wrong total for an individual’s net assets by failing to deduct certain liabilities.
The fault had not always been there but it was present in versions of Form E which were online between April 2014 and mid December 2015 and also between April 2011 and January 2012.
HMCTS staff found that a total of 36,527 cases had used different versions of the Form, of which 3,638 files – 10% – contained the faulty calculator version of Form E. Of these, 1,403 cases were still live, allowing HMCTS to intervene immediately to clearly flag these cases to the courts in order to avoid the error affecting the final orders in these cases.
But 2,235 files – 6.1% – were closed cases, so that the fault could have affected the outcome.
On 21 January 2016 the Minister Shailash Vara announced that parties in these cases would be contacted to see whether they wanted their case to be reviewed.
Although the increased use of IT in court dispute-resolution procedures is inevitable, this instance is a reminder of the importance of ensuring that relevant software is throughly tested before it is made publicly available.
It should be noted that the error was not discovered by a solicitor (they tend to use different software) but by a company called the Family Law Clinic who provide low cost assistance to parties seeking to do the divorce themselves.
It may also be noted that DIY divorce is not just for those of moderate means. The high profile divorce announcement, also in January 2016, by Gary Lineker contained the information that he and his wife had obtained their divorce for just £400.
For the ministerial statement on Form E see https://www.gov.uk/government/speeches/family-justice.
For the family law clinic see http://www.familylawclinic.co.uk/contact-us.html
For news of the Lineker divorce see http://money.aol.co.uk/2016/01/18/how-the-linekers-did-it-keeping-divorce-costs-down/
Legal advice by not-for-profit agencies
The impact of cuts to legal aid to the availability of legal advice from advice agencies is the subject of a new study commissioned and published by the Ministry of Justice. Interestingly, the study notes that this is the first time such a survey has been carried out – so it cannot actually answer the question of how many not-for-profit agencies have closed down.
What the researchers were able to do was gather information from over 700 agencies that are still in business, actively offering legal advice to individual clients.
Among the findings are the following which I think are worth noting here:
- The majority of responding organisations (76%) provided advice on specific subjects, to specific client groups or in specific locations. Only 22% provided a wider range of ‘general’ advice services.
- Most organisations were well established; 83% reported that they had been providing legal advice for more than ten years. There was also evidence of new organisations emerging as nine percent had entered the sector within the last five years (however this is likely to also include some formed through mergers of pre-existing organisations).
- The use of digital services over and above email was limited, with only 10% offering online services such as Skype or live chat and just 8% reported offering web-based automated programmes with no advisor input.
- The categories of law in which advice provision was most commonly offered by responding organisations – welfare benefits, debt and housing – are areas that have largely or partly been removed from legal aid scope under LASPO.
- Forty-five percent of organisations reported offering a ‘client-specific’ advice service, of these, the most common client groups were women and older people.
- Just over half of the responding organisations (51%) reported there were some client or problem types they had been unable to help with in the current financial year.
- Of these, 62% reported that this was due to a lack of resource, 49% reported that problems fell outside of their remit, and 47% reported not having the appropriate expertise within the organisation.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 