Archive for the ‘Chapter 10’ Category
Public expenditure review: impact on the Justice system (2): the future of personal injuries litigation
A totally unexpected announcement in the 2015 Autumn Statement relates to how personal injuries cases are to be dealt with in future. The statement says (at p 125):
3.103 Motor insurance – The government will bring forward measures to reduce the excessive costs arising from unnecessary whiplash claims, and expects average savings of £40 to £50 per motor insurance policy to be passed onto customers, including by:
••removing the right to general damages for minor soft tissue injuries (Claimants will still be entitled to claim for ‘special damages’, including treatment for any injury if required and any loss of earnings);
••removing legal costs by transferring personal injury claims of up to £5,000 to the small claims court.
This announcement has caused consternation amongst PI claimant lawyers since, by moving many more cases into the small claims track, they will not be able to claim their costs from the insurers when they win. This will result in many claimant lawyers giving up this type of work.
Two consequences seem likely to follow:
First, insurers will be able to put more pressure on claimants to settle on terms dictated by the insurers.
Second, claims management companies may well try to find ways to move in to this work.
Despite the fact that many claimants may end up with a lower level of damages than they might have done had they been represented by a lawyer, many will think that the estimated reduction in insurance premia is a price worth paying to ensure that the costs of small claims are more proportionate than they currently are.
There might, however, be another way of looking at the issue.
In Ireland, the Injuries Board – established by Act of Parliament in 2003 – can deal with all personal injury claims on line. The injured party submits details of the accident and the injury; the insurer makes an offer; and this is assessed by an independent assessor with practical experience of PI and familiar with current trends on the awards of damages by the courts.
There is no compulsion to use the system, but it is free to claimants who win their case, and the services costs much less for the insurers (though still makes an annual surplus).
An analogous scheme already operates in the UK for dealing with tenancy deposit disputes.
The full statement is downloadable at https://www.gov.uk/government/publications/spending-review-and-autumn-statement-2015-documents.
For the Irish Injuries Board, go to http://www.injuriesboard.ie/eng/
Enhancing the Quality of Criminal Advocacy
In 2014, a review of criminal advocacy services by Sir Bill Jeffrey was published. In his report he pointed out some harsh truths for the legal professions:
For example:
- Recorded and reported crime are down.
- Fewer cases reach the criminal courts.
- More defendants plead guilty, and earlier than in the past.
- Court procedures are simpler.
- There is substantially less work for advocates to do.
- Its character is different, with more straightforward cases and fewer contested trials.
- In the publicly funded sector (86% of the total), it pays less well.
- There has been a marked shift in the distribution of advocacy work in the Crown Court between the two sides of the profession. There are many more solicitor advocates than there were in the years following the liberalisation of rights of audience. Between 2005-06 and 2012-13, the percentage of publicly funded cases in which the defence was conducted by a solicitor advocate rose from 4% to 24% of contested trials and from 6% to 40% of guilty pleas. Both figures are on a rising trend.
- In 2012-2013, Crown Prosecution Service (CPS) in-house lawyers led the prosecution in approximately 45% of Crown Court trials.
He noted that there would be serious implications for the criminal justice system, if current trends towards the use of solicitor advocates and away from the criminal Bar continue. Sir Bill was clear that it would be neither feasible nor desirable to wind the clock back on rights of audience. He found that solicitor advocates are a valuable and established part of the scene. But if the Bar’s share of the work continues to decline, as the current generation moves to retirement, the supply of top-end advocates to undertake the most complex trials would be in doubt.
This stark assessment is the background to a new consultation, launched in October 2015 by the government, setting on a number of measures it argues are necessary to enhance the quality of advocacy in criminal cases.
The paper sets out two principal reasons why it feels it must undertake this consultation:
- The Government has a responsibility to ensure the delivery of an efficient, fair and effective justice system in which the public has confidence and therefore has a legitimate interest in making sure that good quality criminal advocacy services are available to those that need them.
- The government, via the Legal Aid Agency (LAA), is also the largest single procurer of criminal defence advocacy services, and has a responsibility to ensure that, where such advocacy services are being paid for with public money, they are of a good quality.
The specific proposals on which the Government is seeking views can be summarised as follows:
- the proposed introduction of a panel scheme – publicly funded criminal defence advocacy in the Crown Court and above would be undertaken by advocates who are members of this panel;
- the proposed introduction of a statutory ban on referral fees in criminal cases;
- how disguised referral fees can be identified and prevented; and
- the proposed introduction of stronger measures to ensure client choice and prevent conflicts of interest.
The period of consultation expires at the end of November 2015. If these, or measures similar to what is proposed go ahead, they will have a profound impact on the ways in which criminal practitioners work and the way in which the Legal Aid Agency operates.
For Sir Bill Jeffrey’s report go to https://www.gov.uk/government/news/advocates-must-adapt-to-a-changing-landscape.
For the consultation go to https://consult.justice.gov.uk/digital-communications/enhancing-the-quality-of-criminal-advocacy
Damages based agreements: proposals for reform
One of the most innovative recommendations from Sir Rupert Jackson’s proposals for the reform of costs of civil litigation was that a new regime of ‘damages based agreements’ (DBAs) should be introduced. Known as Contingency Fees Agreements in other jurisdictions, they – in theory – enable a law firm to take on a case, on the basis that if the case is won, the firm can take a percentage of the damages awarded to cover the costs and fees of bringing the action. The intention was that DBAs would be an alternative to Conditional Fee Arrangements – which have been around for some years now.
Although introduced in 2013, they have not taken off as had been hoped. DBAs were subject to special regulations – the Damages-Based Agreements Regulations 2013, SI 2013/609. These regulations have had a chilling effect which has deterred litigators from using them as Jackson had intended.
The Ministry of Justice has drafted proposals for amending the regulations. It was also agreed that the Civil Justice Council should take a specialist look both at the draft revised regs and wider policy issues.
Its report on both these matters was published at the beginning of September 2015.
It seems likely that a version of the revised draft regulations will be brought into effect later in 2015, which should clear up some of the issues which have worried litigators.
But the wider policy issues seem unlikely to be addressed in the short term. The likely impact on civil litigation practice is thus currently very hard to determine.
For the CJC report see https://www.judiciary.gov.uk/announcements/damages-based-agreements-dbas-publication-of-cjc-recommendations/
For a professional commentary on the report see http://blogs.lexisnexis.co.uk/dr/revisions-to-damages-based-agreements-for-civil-litigators/
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Who is doing legal aid? The statistical evidence
On 15 June 2015, I wrote a short note on the then recently published Annual Report of the Legal Aid Agency. I deplored the fact that, by comparison with its predecessor – the Legal Services Commission (whose Annual Reports not only reported on how the organisation was doing but also on the work undertaken by legal aid providers, the innovations it was seeking to introduce and the concerns it felt about the overall robustness of the scheme for delivering legal aid services), the Legal Aid Agency’s report was very narrowly focussed on corporate concerns.There was no information about the services being delivered to the public.
What information is provided is now contained in quarterly statistical reports, the most recent of which was published at the end of June 2015. These relate to the period January 2015-March 2015 (inclusive)
The headline findings were:
Criminal legal aid1.The gradual decline of recent years in crime lower workloads has continued in the context of falling overall crime rates, and the latest quarter saw a 7% fall compared to the same period in the previous year.2. Expenditure on crime lower has declined more than workloads, down 14% compared to the same period of the previous year.. This reflects the introduction in March 2014 of a reduction of 8.75% to the fees paid for most crime lower legal aid work.3.In crime higher, the trend in new work entering the system has dipped in the last few quarters. The number of representation orders granted in the crown court in the last quarter was down 13% compared to the same period of 2014. Part of this reduction was due to fewer cases being in the criminal justice system.Civil legal aid1.The implementation of the LASPO Act in April 2013 resulted in large reductions in legal help workload and expenditure but trends have since levelled out at around one-third of pre-LASPO levels. In the last quarter new matter starts were 6% lower than in the same period of 20142.Workloads in civil representation fell by a smaller proportion than legal help following the implementation of LASPO, and now appear to be stabilising at around two-thirds of pre-LASPO levels. The number of certificates granted in the last quarter was down 7% compared to the same period of the previous year.3. After sharp falls following LASPO, the number of mediation assessments in the latest quarter was 19% up compared to the same period in 2014 and the number of starts was up by 33% over the same period.Exceptional Case Funding1.This quarter, the proportion of applications being granted was 18%, which is 8 percentage points lower than the previous quarter, but 11 percentage points higher than the same quarter of 2014.
Reviewing the structure of the civil justice system
An essential part of the HMCTS reform programme involves deciding how best to deliver civil justice in England and Wales in a modern age of information technology.
The Lord Chief Justice and the Master of the Rolls, as Head of Civil Justice, have recently asked Lord Justice Briggs to carry out an urgent review of the structure of the courts which deliver civil justice. His work is designed to ensure that the structure of the court system aligns with the reform programme and in addition to look at the overall structure of civil justice. He has also been asked to look at the relationship of those courts with the Family Court and with tribunals.
This aim is to assist HMCTS by ensuring that the reform programme comes up with a service which makes best use of the large capital investment proposed and provides a modern, efficient and accessible civil dispute resolution service for all.
An interim report is scheduled for December 2015.
The announcement is at https://www.judiciary.gov.uk/announcements/message-from-the-lord-chief-justice-and-the-master-of-the-rolls-civil-courts-structure-review/
Court fees: new decisions; new consultation
In purely commercial terms, the civil justice and tribunals system operates at a financial loss. Many argue that this is as it should be – the provision of courts and tribunals is a public service that should be financed generally by the state, not just by those who have to use the courts. But the former Coalition Government and the current Conservative Government do not share this view. They argue that users of court and tribunal services should pay more for them than they historically they have done. Despite recent increases in court fees, the Government states that the Courts and Tribunals Service costs £1 billion more than the income received through fees.
In January 2015, I noted here the decisions of the Government to introduce new court fees – decisions which, when they came into effect in April, resulted in a great deal of complaint from the legal profession. Those decisions were also accompanied by a consultation on other proposed changes to court fees.
This incremental approach to policy making – linking decisions and consultations – has now been used again. In July 2015, the newly elected Conservative Government reached its conclusions on the issues it consulted on in January 2015, and at the same time set out further proposals for fee changes on which views are sought – nicely timed for the holiday period when Ministers and civil servants are away, leaving holiday homework for those who have to respond to these documents!
The July 2015 document sets out the following principal decisions and issues.
Court fees – general
We have carefully considered the concerns raised during the consultation and decided not to increase fees by 80% as originally proposed. Instead we will press ahead with a more affordable increase of about a third. We are also protecting the most vulnerable by ensuring that fee remission is available for those who need it, such as women in low wage households.
It cannot be said that the three changes listed above are going to impact significantly on the £1bn shortfall; the Government’s own estimates are that the increased fees will only raise around £60 million.
Further proposals
It is worth remembering that in determining the balance between what users pay towards the overall cost of the court and tribunal service as compared with the financial burden that falls on the taxpayer. That is why, in the last Coalition Government, section 180 of the Anti-social Behaviour Crime and Policing Act 2014 gave the government power to set fees at a level above the costs of proceedings to which they relate, i.e. in crude terms to make a surplus on certain types of proceedings which could be used to fund other types of process.
The Government has now set out further proposals relating to fees for proceedings.
Litigants in person: a problem for the civil justice system or a catalyst for change?
Over three years ago, in this blog, I drew attention to a report of a committee of the Civil Justice Council chaired by Robin (now Mr Justice) Knowles on how the courts might deal with increasing numbers of litigants in person appearing in the civil courts.
Since that time, a number of further publications have appear indicating the concerns that the judiciary and the legal profession have in dealing with litigants in person (LiP).
For example, in October 2013, the Judiciary published their Handbook for litigants in person. Written by a team of county court judges, led by HHJ Edward Bailey, this is a 170 page document giving guidance to the LiP on the different elements that make up the civil justice system and the different stages that a case may need to undergo for a dispute to be resolved. The Master of the Rolls, Lord Dyson, in a foreword wrote that the handbook
will, I am sure, play an important role in rendering the civil litigation process less daunting and more accessible for those litigants who represent themselves. In that regard it will play an important part in helping to maintain our commitment to access to justice as a right available to all.
I confess I have my doubts. By comparison with, for example, legal textbooks on civil procedure, the document is a relatively easy read – but that said for the non-professionally qualified person, I think it is pretty hard going. It would be interesting to know how many people have in fact been able to prepare themselves for an unrepresented trial by taking the advice set out in the handbook.
More recently in June 2015 the legal professions have published Litigants in person: new guidelines for lawyers,
a document which – in effect – reminds professionally qualified lawyers that they owe a duty to the court – not to make the case for the unrepresented party but at least not to take advantage of the fact that their opponent is unrepresented.
Concern about the rise in the numbers of LiPs has, of course, arisen because reductions in the amounts of legal aid for representation in court has reduced the numbers of cases in which parties can be professionally represented. And, in that context, both the judiciary and the legal professions efforts to make things a bit clearer for LiPs is to be welcomed.
But I think there are more fundamental questions which these publications do not address. In particular, there is an assumption that the current practice and procedure of the civil justice system is the right one, and that therefore the remedy is to give the LiP the skills to comply with current practices and procedures.
But what if the current practices and procedures, though ideal for lawyers and judges who are used to them, are not actually the most sensible or effective?
There are plenty of alternatives which might be thought about:
- for example, tribunals in the main adopt procedures which are determined by the chair of the Tribunal;
- the Financial Services Ombudsman use trained staff to assist those customers who are complaining about the service received from banks or other financial institutions to put their complaints into writing
- other systems, such as Tenancy Deposit disputes use an electronic portal to ensure that the key documentation and evidence is available for the dispute resolver to deal with the case.
The Leggatt Review of Tribunals, published way back in 2001, talked of the tribunal having ‘an enabling role’. This did not mean that tribunal judges were biassed in favour of one party rather than another; rather the system should be designed to ensure that the unrepresented knew what information would be likely to be relevant.
The recent JUSTICE report, Civil Justice in an Age of Austerity began to make some rather more fundamental questions about whether the current practices and procedures of the civil justice system are sustainable. In that context, the ‘problem’ of LiPs raises questions that handbooks and guidelines – however well-intentioned – are unlikely to address.
To read the Judiciary Handbook go to https://www.judiciary.gov.uk/publications/handbook-litigants-person-civil-221013/
To read the legal professional guidance go to http://www.lawsociety.org.uk/Support-services/Advice/Articles/Litigants-in-person-new-guidelines-for-lawyers-June-2015/
Litigation (crowd) funding – a new approach
Litigation funding is normally associated with high value commercial cases. Litigation funders provide the financial resources for high cost litigation and commercial arbitration on the basis that they will receive a return on their investment – often a percentage of damages recovered or agreed. Litigation funders will not take on personal injury cases or consumer cases because the damages involved are (usually) too low
But an article in the Sunday Times 21 June 2015 caught my attention. Under the headline Man, 87, sues care home for right to kiss his wife it was reported that an 87 year old man was seeking to establish a right to kiss his wife, who lives in a care home suffering from dementia.
At the end of the article it was stated that the man’s lawyers were working pro bono but also they were seeking to raise £4000 for legal fees through a new company called CrowdJustice.
Launched on 25 May 2015, CrowdJustice seeks to raise modest sums – up to £5000 – to help defray costs in cases which the company thinks have some social importance, such as the treatment of the elderly and vulnerable or have a wider community impact.
An example of the latter is the case being brought by a Colombian man, Gilberto Torres, who is fighting a legal case before the UK High Court in order to end the impunity of British oil companies’ actions abroad. He claims that
Me and my family have had our lives destroyed because I tried to take a stand when I saw human rights and environmental abuses being committed to protect the interests of BP in Colombia, where I worked as an engineer. I was kidnapped and tortured in retribution, and now we’ve been forced to leave Colombia and live in exile. Help us get our lives back, and help expose in court the human rights violations committed by fossil fuel companies abroad.
At the moment, CrowdJustice is taking cases on an invitation-only basis. But it inviting those who think they may have a case that affects their community to get in touch.
The website states:
When someone has a court case that they feel passionate about and that affects others in their community, they can set up a Case Page on CrowdJustice that explains what the case is about and why they need help funding it. That person – the Case Owner – sets a deadline and funding target of the amount they need to raise to help offset the costs of taking their case forward. It’s up to you to support them, help spread the word and make pledges to help them meet the funding target.
Only when the funding target is met do the pledges get collected and backers’ cards get charged. If the funding target is not met, the pledges made do not get collected.
When a case is successfully funded, a Case Owner will keep in touch and update backers about the latest developments in a case.
Unlike litigation funding, those who invest in these community cases will not usually see any return on their investment (unless they have pledged more than £1000, where they may receive a percentage of the sum pledged back). Any surplus at the end of a case is paid to the Access to Justice Foundation.
This is an innovative approach to the challenge of enabling access to justice in cases of potential social importance. For more details go to https://www.crowdjustice.co.uk/
For more details on the very different work of commercial litigation funders go to the home page of the Association of Litigation Funders of England and Wales at http://associationoflitigationfunders.com/.
This site gives links to the member companies who are offering litigation funding in commercial cases.
Legal Aid – Exceptional Cases Funding – recent developments
Following enactment of the Legal Aid Sentencing and Punishment of Offenders Act 2012,(LASPO) the scope of civil legal aid was significantly reduced. Civil legal services could only be funded under the new legal aid scheme which fell within statutorily prescribed classes of case. (See LASPO section 9 and schedule 1).
However, section 10 of the Act did provide that, in exceptional circumstances, civil legal services could be provided where
(a) … it is necessary to make the services available to the individual … because failure to do so would be a breach of –
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) … it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
The Director of Case Work has the statutory responsibility for making such decisions. In reality, the decisions are taken by case workers working within the Legal Aid Agency.
In coming to their decisions, case workers are required to take into account Guidance issued by the Lord Chancellor. (LASPO section 4.)
The Lord Chancellor was clearly anxious that, unless he was careful, the existence of exceptional funding might create a means for getting round the limitations he sought to impose on the Legal Aid scheme, which would have the effect of undermining the Government’s desire to reduce public expenditure on legal aid. Thus, in his guidance on exceptional case funding, which was published in 2013, it was stressed that, in reaching their decisions, case workers should understand that this funding ‘is to be used for rare cases’ only; ‘limited resources’ should be focussed ‘on the highest priority cases’. In relation to cases that might involve breach of Article 6 of the ECHR (right to a fair trial) the guidance stated: The overarching question to consider is whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings. This is a very high threshold” (original emphasis).
Shortly before Christmas 2014, the Court of Appeal handed down its decision in the case of Gudanaviciene . The case actually involved 6 cases which had been brought together because they raised in essence the same question – was the Lord Chancellor’s Guidance lawful? It was argued, in effect, that the terms in which the guidance had been drafted imposed too high a threshold on applicants for exceptional funding, and that therefore the guidance went beyond the words of the Act, and were in consequence unlawful.
The Court of Appeal agreed with this argument. In the course of a long judgement, they held, in part, that
The fact that section 10 is headed “exceptional cases” and that it provides for an “exceptional case determination” says nothing about whether there are likely to be few or many such determinations. Exceptionality is not a test. The criteria for deciding whether an ECF determination should or may be made are set out in section 10(3) by reference to the requirements of the Convention and the Charter. In our view, there is nothing in the language of section 10(3) to suggest that exceptional case determinations will only rarely be made.
They therefore concluded that the Lord Chancellor’s Guidance was unlawful.
The question for Government was: how to respond to this judgement? There were two options: take a further appeal to the Supreme Court; or reissue the guidance and hope that the revised guidance would comply with the Court of Appeal’s interpretation of LASPO.
In the event, the Government decided on the latter course. On 9th June 2015, the Lord Chancellor published revised guidance on how exceptional case funding decisions are to be made in future. While those who drafted the revised guidance are still concerned that the provision of exceptional case funding should be kept under controi, the ‘tone’ of the document seems to have softened. Indeed the emphasis, for case workers taking decisions on these matters is whether – as the Act says, the provision of such funding is necessary.
The recent election of the new Conservative Government has clearly scotched any lingering hopes in the legal profession that there would be any major softening of policy on civil legal aid. But the revised guidance on exceptional case funding for civil legal services does represent a change in emphasis which practitioners must note and apply.
To read the judgement of the Court of Appeal in the Gudanaviciene case go to https://www.judiciary.gov.uk/wp-content/uploads/2014/12/gudanavicience-ors-v-dir-of-legal-aid.pdf
To read the revised guidance on emergency case funding (non-inquest) go to https://www.gov.uk/government/publications/legal-aid-exceptional-case-funding-form-and-guidance. This page also gives a link to the guidance relating to inquest cases.
What is happening to Legal Aid? Reports from the Legal Aid Agency June 2015
Publication of the second Annual Report of the Legal Aid Agency might be thought to be an opportunity to find out in a bit more detail about what is happening to Legal Aid, following implementation of the Legal Aid Sentencing and Punishment of Offenders Act 2012. Those expecting such information will be very disappointed. The bulk of the Annual Report details how various business targets have or have not been met during the year under review. The report is thus about administrative and operational outcomes, rather than giving a view of how citizens are (or are not) being assisted by legal aid.
The Annual Report appeared on the same day as a much shorter summary by the Director of Legal Aid of issues that had come up during the same reporting year. This is also very general in tone – though it does mention a couple of cases that went to the Court of Appeal – and is more about the process of dealing with cases than anything else.
All the details on the current operation of the legal aid scheme is now put into quarterly statistical reports. The next is due at the end of June 2015. I will report on these in due course. But I very much regret that the reporting strategy of the former Legal Services Commission – which used to run legal aid – which included the key statistical headlines and provided a commentary on how the scheme was working for the public has not been continued.
To see the 2nd Annual Report go to https://www.gov.uk/government/publications/legal-aid-agency-annual-report-and-accounts-2014-to-2015
The Director of Legal Aid Case Work’s Report is at https://www.gov.uk/government/publications/director-of-legal-aid-casework-annual-report-2014-to-2015
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 