Archive for the ‘Chapter 8’ Category
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:
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/
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 willincrease signposting to mediation and alternative dispute resolution services tohelp 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 legalcosts which can be recovered from the losing side by the successful party to aclaim, at a prescribed rate. (For civil claims, these are set out in the CivilProcedure Rules). We will build on measures introduced in the last Parliament forlow value personal injury claims, to limit the level of legal costs recoverable.These measures provide transparency and certainty for all parties and aredesigned to ensure that the amount of legal work done is proportionate to thevalue of the claim. We are keen to extend the fixed recoverable costs regime toas many civil cases as possible. The senior judiciary will be developing proposalson which we will then consult.iv. Civil enforcement: We will give the [county court] powers to issue attachment ofearnings orders to the High Court to create a simpler, more consistent approachto enforcement, and make sure more people can get the money they are owed.We will also commence the fixed deductions scheme (fixed table) provisions inthe Tribunals, Courts and Enforcement Act 2007 in the County Court andintroduce fixed tables in the High Court, providing transparency and certainty ofthe rate of deductions from debtors’ earnings to pay back their creditors.v. Replacing statutory declarations in county court proceedings with a witnessstatement verified by a statement of truth: We will replace outdated and currentlyinconsistent procedures, which are inconvenient for people to use and resourceintensive to administer, with a more modern digital approach but keeping strongpenalties where a statement of truth is found to be false.
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 andseriousness 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 timedealing with uncontroversial, routine or straightforward matters which could just aseffectively be dealt with by court staff under judicial authorisation. Where it isappropriate, specially trained staff will be able to carry out some of this work tohelp justice move faster.ii. More decisions made “on the papers”: Where a case is relatively straightforward orroutine, representations will be made online in writing for a judge to consideroutside 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 theirarguments, it will be possible in many cases to hold the hearings over telephone orvideo 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 trialsand other serious or complex cases, but where they are appropriate, virtualhearings offer an easy and convenient alternative for everybody.iv. More cases resolved out of court: In appropriate cases, we will encourage partiesto settle their disputes themselves, without the intervention of the courts.
i. Putting probate applications online: Dealing with probate affairs can be difficult andcomplicated at a time when people are often coping with bereavement. We aredigitising the probate system to allow the entire process to be managed online,from application to resolution, making it an easier and faster process when casesare uncontested.ii. Managing divorce online: Work has already begun to allow divorce applications tobe made and managed online, removing some of the bureaucracy from oftenstressful and lengthy proceedings and simplifying cumbersome administrativeprocesses.iii. Digitising applications for Lasting Powers of Attorney: Allowing people to makearrangements for a time in the future when they may not be able to makedecisions by themselves is a helpful but often emotionally stressful process.Applications have been partially digitised since 2014, resulting in fewer applicationforms being returned because of errors. We will build on this by making the systemfully digital to deliver a quicker service.
i. Provide a system that works for everyone: Digital and online processes are easyand efficient for many people, but the justice system must also work for peoplewho do not or cannot access services online. We must provide an alternative routeof access for every service that moves online. ..ii. Continue to ensure open justice: It is a core principle of our justice system thatjustice is open. “It is not merely of some importance, but of fundamentalimportance that justice should not only be done, but should be manifestly andundoubtedly seen to be done,” as Lord Chief Justice Hewart said in 1924. Theprinciple of open justice will be upheld and the public will still be able to see andhear real-time hearings, whilst we continue to protect the privacy of the vulnerable.
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.
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/
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/
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.
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.