Archive for the ‘Chapter 4’ Category
Review of the structure of the civil courts
The review of the structure of the civil courts, undertaken at great speed and efficiency by Lord Justice Briggs, was published on 27 July 2016.
Although commissioned by the Lord Chief Justice and the Master of the Rolls rather than by Government Ministers, there are strong reasons to believe that its recommendations will be taken forward by Government. The one uncertainty is how far the new Lord Chancellor and Secretary of Justice, Lynne Truss MP, will focus on an initiative originally supported by her predecessor, Michael Gove MP.
The recommendation that has grabbed most public attention so far relates to the recommendation for The Online Court.
This would be a new court, designed to be used by people with minimum assistance from lawyers, with its own set of user-friendly rules. It is anticipated that it will eventually become the compulsory forum for resolving cases within its jurisdiction. It should start by dealing with straightforward money claims valued at up to £25,000.
The review makes recommendations about how to help people who need assistance with online systems.
It is also provided that complex and important cases, even of low monetary value, should be able to be transferred upwards to higher courts.
Briggs also recommends important changes to who should be undertaking the work of the courts. Judicial resources should be made more readily available by the creation of Case Officers.
These would be a senior body of court lawyers and other officials who can assist with certain functions currently carried out by judges, such as paperwork and uncontentious matters. They would be trained and supervised by judges. Their decisions would be subject to reconsideration by judges on request by a party. They would operate independently of government when exercising their functions.
Thirdly Briggs deals with the thorny problem of the Enforcement of Judgments and Orders.
He recommends that there should be a single court as the default court for the enforcement of the judgments and orders of all the civil courts (including the new Online Court). This should be the County Court, but there would need to be a permeable membrane allowing appropriate enforcement issues to be transferred to the High Court, and special provision for the enforcement of arbitration awards, in accordance with current practice and procedure.
He wants to see all enforcement procedures being digitised, centralised and rationalised.
Fourth, Briggs is keen to promote Mediation/ADR.
This has been on the agenda for years. In this context he recommends the re-establishment of a court-based out of hours private mediation service in County Court hearing centres prepared to participate, along the lines of the service which existed prior to the establishment and then termination of the National Mediation Helpline. My view is that all county court hearing centres should be required to offer this; but Briggs clearly felt this was a step too far at this stage.
Future issues
Briggs also sets out a number of proposals for further restructuring of the civil courts. These include:
- a review of High Court divisions;
- a single portal for the issue of all civil proceedings, leading to the eventual abolition of District Registries;
- a review of whether procedural changes in the Court of Appeal should be applied to appeals to the High Court and to Circuit Judges in the County Court;
- the possible convergence of Employment tribunals and the Employment Appeal tribunal with the county court;
- he would like to see the Family Court being given a shared jurisdiction (with the Chancery Division and the County Court) for dealing with Inheritance Act disputes and disputes about the co-ownership of homes.
Announcements about the Government’s response to these recommendations and how they fit into the current programme of reform of the court estate will be noted here in due course.
Detail about the Briggs review can be found at https://www.judiciary.gov.uk/civil-courts-structure-review/civil-courts-structure-review-ccsr-final-report-published/civil-courts-structure-review-final-report-press-notice/
First female Lord Chancellor
In appointing Lynne Truss MP to be Secretary of State for Justice and Lord Chancellor, the new Prime Minister, Theresa May, has made history. Truss is the first woman to hold this office – ever.
What is important, of course, is what policies she will take forward. Although his last weeks in Government were surrounded in controversy, Truss’ predecessor Michael Gove had taken some important initiatives, in particular on prison reform and reform of the civil justice system.
I will note developments as they occur in these blogs.
What is a court? Proposals for a modern approach to the courts and tribunals estate.
The programme for restructuring how all the buildings currently used by courts and tribunals – to ensure better and more effective usage – is gathering pace. A significant contribution to how detailed policy may develop was made this month by the legal think-tank, JUSTICE. A recent working party report (in which I participated) recommends:
- The reconception of court and tribunal rooms as ‘justice spaces’. This new model is defined by its inherent flexibility and rejection of the over-standardisation prevalent in existing courts and tribunals. Justice spaces are designed to adapt to the particular dispute resolution process taking place within them, and the needs of users, rather than the other way around.
- A flexible and responsive court and tribunal estate, made up of a number of dynamic parts. The Working Party suggests a portfolio of Flagship Justice Centres; Local Justice Centres; ‘Pop-up courts’; remote access justice facilities; and digital justice spaces.
The Working Party emphasises the importance of technology, and its potential to meet user needs and maximise access to justice. All of the Working Party’s proposals are anchored in a commitment to a core set of principled considerations to ensure fairness of process and access to justice. Finally, the report makes practical recommendations aimed at ensuring the effective implementation of the HMCTS Reform Programme.
The full report (and accompanying Press Release) can be accessed at http://justice.org.uk/what-is-a-court/
Determining judicial pay – current concerns
Each year, the pay of judges is determined – along with other public sector senior appointments – by the Government, following recommendations made by the Senior Salaries Review Board.
They come to their views in the light of evidence received from government and the judiciary themselves.
In January 2016, the Ministry of Justice’s evidence to the Board was published. It provides a great deal of statistical material on the judiciary – both in the courts and in tribunals.
The Government’s position is that overall increases in judicial pay should be limited to the target that has been imposed thoughout the civil service that total pay should increase by no more than 1%.
But the MoJ concedes that there is some evidence that, especially for appointments to the High Court, the recruitment and retention of highly qualified and experienced judicial expertise is proving a bit tricky. The attraction of the knighthood/damehood that all high court judges receive on appointment and a good pension are – it is argued – no longer sufficient. The Ministry of Justice is therefore suggesting that the pay of High Court judges should be enhanced by 3% – to be funded by lower pay increases for other judicial ranks.
The Senior Salaries Review Board has not yet reached its determination for this year.
Looking ahead, the Ministry of Justice contemplates that – in light of all the changes currently taking place in the justice systems – there should be a more fundamental review of judicial pay, taking into account no doubt whether the current numbers of judicial appointments are appropriate.
I will note the outcome of the Board’s Review in due course.
The Ministry of Justice evidence is at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/492029/senior-salaries-review-report-2016-2017.pdf with a short summary at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/492028/ssrb-evidence-pack-covering-letter.pdf
Court closures: the details
In July 2015, the Government launched a consultation on closing under used courts. 91 possible buildings were earmarked for possible closure. (See this blog 26 July 2015)
We know that reduction of the court estate is a key component needed to fund the investment needed to modernise the court estate. (See this blog 3o Nov 2015).
The Government has now announced the buildings that are to be closed – together with an indicative timetable showing that the closure programme will run over 2 years.
In the end only 64 of the sites originally identified will close as proposed. A further 22 closures will take place, but modified from the original proposals. 5 escape the axe altogether.
The details can be found at https://www.gov.uk/government/consultations/proposal-on-the-provision-of-court-and-tribunal-estate-in-england-and-wales
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.
Increasing competition in the legal services market
HM Treasury has just published (30 November 2015) a policy paper: A better deal: boosting competition to bring down bills for families and firms.
It notes that 40% of the average persons post-tax income is spent on buying essential services, including
Housing costs including mortgage repayments: £4,880
Energy £1,280
Clothing £1,180
Insurance £875
Telecoms £725
Water £385
Health products and services £325
Legal and Banking £35
Total £9,685
The policy paper sets out its aim of ensuring that there os more competition in all these markets to drive down costs to the indovidual and small business. This is also part of the drive for increased productivity.
Although only a small part of the total, the provision of legal services is not going to be immune from scrutiny. In a Consultation paper, to be published in Spripng 2016, ideas will be set out on new business models, and independent regulators, for legal services.
The White Paper states:
2.10 According to a recent survey by YouGov, 62 per cent of adults have used a law firm or solicitor at some point in their lifetime and the cost of legal services is now considered the most important factor when searching for a legal representative. The government wants to ensure that innovative businesses are able to enter the market, providing greater choice for consumers. Alternative business models are around 15 percentage points more likely to introduce new legal
services than other types of regulated solicitors’ firms.
2.11 The government will launch a consultation by spring 2016 on removing barriers to entry for alternative business models in legal services, and on making legal service regulators independent from their representative bodies. This will create a fairer, more balanced regulatory regime for England and Wales that encourages competition, making it easier for businesses such as supermarkets and estate agents among others, to offer legal services like conveyancing, probate and litigation.
But that is not all. The policy paper promises other initiatives as well. These include:
Saving motorists money on their insurance policy
2.13 The government is determined to crack down on the fraud and claims culture. Whiplash claims cost the country £2 billion a year, an average of £90 per motor insurance policy, which is out of all proportion to any genuine injury suffered. As set out at the Spending Review and
Autumn Statement 2015, the government intends to introduce measures to end the right to cash compensation for minor whiplash injuries, and will consult on the details in the New Year. This will end the cycle in which responsible motorists pay higher premiums to cover false claims
by others. It will remove over £1 billion from the cost of providing motor insurance, and the government expects the insurance industry to pass an average saving of £40 to £50 per motor insurance policy on to consumers.
These changes are likely to have significant impact on those firms which specialise in providing legal services to the victims of road accidents.
Injecting innovation into the process of home buying
2.18 The government wants to inject innovation into the process of home buying, ensuring it is modernised and provides consumers with different – and potentially quicker, simpler and cheaper – ways to buy and sell a home. Encouraging new business models (for example, online only estate agents) is key to enhancing price competition in the real estate sector, but these have yet to penetrate the market.
2.19 In addition, emerging findings from government research suggest that consumers incur costs of around £270 million each year when their transactions fall through and they have already spent money on legal fees and surveys, and many more sales are subject to costly delays. Similar issues can affect businesses trying to buy or sell commercial property – the UK ranks 45th for registering property in the World Bank’s Doing Business index, and improving performance will help unlock additional economic growth.
2.20 The government wants to consider and address the way the real estate and conveyancing markets have developed around the existing regulatory frameworks, encourage greater innovation in the conveyancing sector and make the legal process more transparent and efficient. The government will therefore publish a call for evidence in the New Year on homebuying, exploring options to deliver better value and make the experience of buying a home more consumer-friendly.
The knock on implications for changes to conveyancing are also likely to impact significantly on law firms and conveyancers.
In addition, the Government has promised a further review of how the regulatory structure created by the Legal Services Act 2007 is operating, with a view to making it more efficient. Although nothing will happen immiediately, the legal profession faces considerable policy change which will require innovative and and imaginative reponses, which professionals need to start thinking about now.
The text of the paper is at https://www.gov.uk/government/publications/a-better-deal-boosting-competition-to-bring-down-bills-for-families-and-firms
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/
Public spending review: impact on the Justice system (1): Court closures and investment in IT
The long awaited announcement that there would be significant investment in prisons and also in the IT infrastructure for the Courts and Tribunals service, paid for by selling existing old prisons and little used court buildings, was made by the Chancellor of the Excehquer in the Autumn Statement and Spending Review, announced on 25 November 2015.
More specifically, the Ministry of Justice website notes:
On prisons
£1.3 billion will be invested to reform and modernise the prison estate to make it even more efficient, safer and focused on supporting prisoner rehabilitation. The government will build 9 new, modern prisons – 5 of which will open this Parliament – with better education facilities and other rehabilitative services, while selling ageing, inefficient prisons on prime real estate to free up land for new homes.
By investing in the prison estate, the government will reduce running costs in prisons by £80 million a year when the reforms are complete. New investment will also fund video conference centres, allowing up to 90,000 cases to be heard from prison instead of court, and will deliver more safety improvements in prisons, including body scanners and mobile phone blocking technology.
The Government states its hope that these reforms will reduce reoffending through more effective rehabilitation, and will reduce the cost of transporting prisoners between courts and prisons, stamp out the organisation of crime from within prisons, and stem the availability of drugs and other illicit substances.
The Government also states that these developments will build on the probation reforms undertaken in the last Parliament, which will reduce the costs of the system and reinvest them into extending probation support to 45,000 short-sentence offenders for the first time, to tackle reoffending.
On courts and tribunals
Over £700 million will be invested to fully digitise the courts and create a more modern estate. This will generate savings to the taxpayer of approximately £200 million a year from 2019-20. The government will also look at changes to court fees as it continues to put the courts on a more sustainable financial footing.
The text of the statement and other documents may be accessed at https://www.gov.uk/government/topical-events/autumn-statement-and-spending-review-2015
The impact on the Ministry of Justice is at https://www.gov.uk/government/news/ministry-of-justices-settlement-at-the-spending-review-2015
Training the Judges – developing the work of the Judicial College
In December 2012 I published a podcast with Lady Justice Hallett on the work of the Judicial College in training the judiciary. Her role was taken over by Lady Justice Rafferty in August 2014.
The work of the College has continued to develop although with reduced resources.
It still provides core induction training for all new judges – different courses depending on the type of judge concerned – criminal, civil, administrative.
But its most notable innovation has been the creation of an extensive prospectus of courses to which sitting judges may sign up. (They have to undertake a minimum amount of compulsory professional development wach year). The scope of the programme is considerable and includes a number of academic seminars bringing together judges and legal scholars. The bulk of the programme focusses on practical matters arising in different subject areas.
Information about the work of the Judicial College can be found at https://www.judiciary.gov.uk/about-the-judiciary/training-support/judicial-college/
The current prospectus (valid until March 2015) can be accessed by clicking on the link on that page.
The Equal Treatment Bench Book, published by the College is also available on-line. See https://www.judiciary.gov.uk/publications/equal-treatment-bench-book/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 