Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 8’ Category

Compensation culture: cutting down ‘whiplash’ claims

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Those who argue that a compensation culture has developed in our society – with too many people willing to seek compensation for things that have happened to them – often point to the numbers of claims made for soft tissue injuries occurring in road traffic accidents (RTAs), commonly referred to as ‘whiplash claims’

In 2015, the Government announced that it wanted to reduce the incentives on people bringing whiplash claims. It has now published a consultation paper setting out its ideas in more detail.

The package includes measures to tackle the high numbers of minor RTA related soft tissue injury claims by either:

 (a) i.removing compensation for pain, suffering and loss of amenity (PSLA) following an accident or
ii. reducing compensation for PSLA by setting a fixed amount payable (£400 or
£425 if there is a psychological element) for these types of claim.
(b) reducing compensation for PSLA for other RTA related soft tissue injury claims
where recovery takes longer than for those covered by measure (a) above through
the introduction of a set tariff of compensation;
(c) raise the small claims limit for all personal injury claims to £5,000 (by reference to
the value of the PSLA element of the claim). This would have the effect that the
legal costs of such claims would no longer be recoverable from defendants in the
majority of soft tissue injury claims, although certain costs arising from litigation
(for example the costs of issuing the claim) and a number of disbursements (for
example the cost of the medical report) could still be claimed by a successful
claimant; and
(d) ban pre-medical offers to settle RTA related soft tissue injury claims, so in future
claims could not be settled without medical evidence provided by MedCo accredited practitioners.

 

Measures (a), (b) and (d) will require primary legislation and the government intends to legislate as soon as parliamentary time allows.Measure (c) requires changes to the Civil Procedure Rules (CPR). There will also need to be amendments to relevant Pre-Action Protocols including the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.

It is argued that these changes could reduce the cost of insurance claims by around £1bn annually.

The Consultation will provoke strong views, and are likely to be fiercely resisted, particularly by those who represent claimants. If implemented, the reforms could also have significant impact on Claims Management Companies.

The outcome of the consultation is not yet clear, nor, importantly is it clear when time for the required legislation could be found. But it is an issue that is unlikely to go away, even if implementation is still some time off.

The Consultation can be found at https://consult.justice.gov.uk/digital-communications/reforming-soft-tissue-injury-claims/

 

Written by lwtmp

November 23, 2016 at 11:02 am

Transforming the English Legal System: Civil Justice

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The Consultation Paper Transforming our Justice System sets out proposals for reform of the civil justice system that build on work undertaken earlier in 2016 by the Civil Justice Council, JUSTICE and Lord Justice Briggs – all of which have been noted in this blog.
The principal features of what is now proposed are:

 

i. Introducing a new online process for resolving claims: In line with plans across all jurisdictions, we will move more cases away from physical court rooms. Building on Lord Justice Briggs’ proposals in his Civil Court Structures Review we will create a new process to resolve many disputes entirely online, using innovative technology and specialist case officers to progress routine cases through the system and reserving judicial time for the most complex cases. We will create a new, streamlined Rules Committee to design this new system and keep the processes simple. When hearings are required, they may be held over thetelephone or video conference, focusing court resources on the most complex and difficult cases. This will mean that cases should reach a quicker resolution.

ii. Encouraging parties to resolve disputes themselves where possible: We will
increase signposting to mediation and alternative dispute resolution services to
help people avoid court for minor disputes that would be better handled privately,
without needing the court to intervene.
iii. Extending the fixed recoverable costs regime: Fixed recoverable costs are legal
costs which can be recovered from the losing side by the successful party to a
claim, at a prescribed rate. (For civil claims, these are set out in the Civil
Procedure Rules). We will build on measures introduced in the last Parliament for
low value personal injury claims, to limit the level of legal costs recoverable.
These measures provide transparency and certainty for all parties and are
designed to ensure that the amount of legal work done is proportionate to the
value of the claim. We are keen to extend the fixed recoverable costs regime to
as many civil cases as possible. The senior judiciary will be developing proposals
on which we will then consult.
iv. Civil enforcement: We will give the [county court] powers to issue attachment of
earnings orders to the High Court to create a simpler, more consistent approach
to enforcement, and make sure more people can get the money they are owed.
We will also commence the fixed deductions scheme (fixed table) provisions in
the Tribunals, Courts and Enforcement Act 2007 in the County Court and
introduce fixed tables in the High Court, providing transparency and certainty of
the rate of deductions from debtors’ earnings to pay back their creditors.
v. Replacing statutory declarations in county court proceedings with a witness
statement verified by a statement of truth: We will replace outdated and currently
inconsistent procedures, which are inconvenient for people to use and resource
intensive to administer, with a more modern digital approach but keeping strong
penalties where a statement of truth is found to be false.

See chapter 3 in https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf

Transforming the English Legal System

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September 2016 saw the publication of an extremely important Consultation Paper, which sets out ideas on how the courts and tribunals system in England and Wales should be reformed.

Its proposals are based on three principles, that the reformed system should be proportionate, accessible and just.

The Paper states:

To deliver a system that is proportionate and tailored for the complexity and
seriousness of individual cases, [the Government is] taking a consistent approach across jurisdictions [i.e., criminal, administrative, family and civil], including:
i. More use of case officers for routine tasks: Judges spend too much of their time
dealing with uncontroversial, routine or straightforward matters which could just as
effectively be dealt with by court staff under judicial authorisation. Where it is
appropriate, specially trained staff will be able to carry out some of this work to
help justice move faster.
ii. More decisions made “on the papers”: Where a case is relatively straightforward or
routine, representations will be made online in writing for a judge to consider
outside of a traditional court room, without the need for a physical hearing,
meaning a more convenient experience for everyone involved.
iii. More virtual hearings: Where a judge needs to listen to the parties make their
arguments, it will be possible in many cases to hold the hearings over telephone or
video conference, without the need for the parties to travel to a court building.
There will still be an important place for physical court hearings for criminal trials
and other serious or complex cases, but where they are appropriate, virtual
hearings offer an easy and convenient alternative for everybody.
iv. More cases resolved out of court: In appropriate cases, we will encourage parties
to settle their disputes themselves, without the intervention of the courts.
The Government wants to make legal processes more accessible and easier for to use, with many  services moving online – for example:
i. Putting probate applications online: Dealing with probate affairs can be difficult and
complicated at a time when people are often coping with bereavement. We are
digitising the probate system to allow the entire process to be managed online,
from application to resolution, making it an easier and faster process when cases
are uncontested.
ii. Managing divorce online: Work has already begun to allow divorce applications to
be made and managed online, removing some of the bureaucracy from often
stressful and lengthy proceedings and simplifying cumbersome administrative
processes.
iii. Digitising applications for Lasting Powers of Attorney: Allowing people to make
arrangements for a time in the future when they may not be able to make
decisions by themselves is a helpful but often emotionally stressful process.
Applications have been partially digitised since 2014, resulting in fewer application
forms being returned because of errors. We will build on this by making the system
fully digital to deliver a quicker service.
Across the board, the Government wants to simplify forms and make processes more
straightforward so they are easier for everyone to understand. Many of these changes are designed to bring the justice system up to date for the modern world and take advantage of advances in technology to provide a faster,more accessible service for users of the courts and tribunals.
It is important, however, any unintended effects of this technology are taken into account to make sure that the system remains just. Thus the Government intends to:
i. Provide a system that works for everyone: Digital and online processes are easy
and efficient for many people, but the justice system must also work for people
who do not or cannot access services online. We must provide an alternative route
of access for every service that moves online. ..
ii. Continue to ensure open justice: It is a core principle of our justice system that
justice is open. “It is not merely of some importance, but of fundamental
importance that justice should not only be done, but should be manifestly and
undoubtedly seen to be done,” as Lord Chief Justice Hewart said in 1924. The
principle of open justice will be upheld and the public will still be able to see and
hear real-time hearings, whilst we continue to protect the privacy of the vulnerable.
Most of these changes build on initiatives that are already underway. What is important about this new Consultation Paper is that it is being jointly promoted by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals.
I set out in separate blog items the sections of the Paper on each of the different parts of the justice system.
The paper is not open for consultation for long. To read the paper and find the questions to which the government is seeking answers go to https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals

Written by lwtmp

October 5, 2016 at 9:31 am

Review of the structure of the civil courts

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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:

  1. a review of High Court divisions;
  2. a single portal for the issue of all civil proceedings, leading to the eventual abolition of District Registries;
  3. 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;
  4. the possible convergence of Employment tribunals and the Employment Appeal tribunal with the county court;
  5. 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/

What is a court? Proposals for a modern approach to the courts and tribunals estate.

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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/

More fixed costs in civil litigation?

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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.

 

 

Written by lwtmp

March 19, 2016 at 3:39 pm

Regulation of Claims Management Companies

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One of the documents published with papers relating to the March 2016 Budget statement was a report of an independent review of Claims Management Companies (CMCs). Unusually, CMCs are regulated by a dedicated Unit which operates within the Ministry of Justice, rather than by a body more independent of a government department.

The review offers three options for the way forward: 1, creating a wholly now external regulator; 2, leaving things within the Ministry of Justice, while building on the reform programme currently being developed by the Unit; or 3, transferring the function to the Financial Conduct Authority.

The review concluded that the first option would be unlikely to be approved by Government, as it would be too expensive and disruptive. The second option would be the least disruptive to the market; option 3 would permit a new, refreshed approach.

The Government has now announced that it will transfer this function to the FCA – but as this will require legislation to achieve, it is unlikely to take place before 2018.

Details of the review are at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/508160/PU1918_claims_management_regulation_review_final.pdf

 

 

Written by lwtmp

March 18, 2016 at 11:54 am