Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 8’ Category

Enforcement of judgments

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One of the challenges for the civil justice system is knowing how to enforce judgments made by the courts that money should be paid by the losing party to the winner. At the heart of this issue is the problem of whether someone cannot pay (because they just do not have the resources) or won’t pay (because they won’t).

The rules relating to enforcement agents working for both the High Court and County Court were amended with effect from April 2014, and a review of the first year of operation of the new rules was started a year later in 2015. The results of that review were published in April 2018.

The results of the review are not in themselves particularly startling though there are indications that the new rules are beginning to have some impact, both in relation to the behaviour of enforcement agents, and in encouraging people to come to an agreement before their possessions are actually seized for sale (the usual objective of enforcement action in civil cases).

This is very much work in progress. Indeed, a significant component of the big Transformation Programme is the Transforming Compliance and Enforcement Programme (TCEP) which is upgrading systems in HMCTS’s National Compliance and Enforcement Service, used to enforce court orders such as penalties and compensation. If this works, this will have impact across the whole of the justice system, not just civil justice, as it will also deal with fines and compensation orders made in criminal courts.

For the one year review, see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695833/one-year-review-bailiff-reform-web.pdf

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Written by lwtmp

June 8, 2018 at 10:32 am

Transforming the Justice system – views from the National Audit Office

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In this blog, I have tried to keep readers abreast of developments with the major Transformation of the Justice system programme. I have observed that this is not always easy and depends on keeping an eye out for press releases, blogs and now the new monthly e-bulletin issued by HM Courts and Tribunals Service.

In May 2018, the National Audit Office (NAO) published its first appraisal of how the programme is going.

Obviously the NAO is supportive of the aims of the programme, which it summarises as follows:

In 2016, HMCTS set up a portfolio of change programmes that will introduce

new technology and working practices to modernise and upgrade the justice system.

By March 2023, HMCTS expects to employ 5,000 fewer staff, reduce the number of
cases held in physical courtrooms by 2.4 million cases per year and reduce annual
spending by £265 million. Savings will come from lower administrative and judicial staff costs, fewer physical hearings and running a smaller estate. As well as making savings HMCTS expects the reformed system to work better for all those involved, use court time more proportionately, and make processes more accessible to users.

The NAO report helpfully reminds readers of the scale and scope of the overall programme:

The HMCTS change portfolio consists of several related programmes, which in turn
are made up of many individual projects. The major programmes are:
• The HMCTS Reform Programme which is modernising processes and systems
to reduce demand on courts by moving activity out of courtrooms. For example,
it will introduce online services and digital case files and expand the use of video
technology in hearings.
• The Common Platform Programme which is developing shared processes
and a digital criminal justice case management system to share information
between HMCTS, the Crown Prosecution Service and the police. It is jointly
managed by these organisations.
• The Transforming Compliance and Enforcement Programme (TCEP) which
is upgrading systems in HMCTS’s National Compliance and Enforcement Service,
used to enforce court orders such as penalties and compensation.
As part of these programmes, HMCTS is also reducing and modernising the
court and tribunal estate and creating cross-jurisdictional hearing centres and national ‘customer service centres’. These will centralise case management and administration and provide support to the public, judges and lawyers on civil and criminal matters.
The NAO makes some rather obvious observations:

1 The scope of the programme is challenging

2 The timetable has been expanded

3 The scope of some projects has been reduced

4 Progress has been slower than expected

5 Costs have risen and likely benefits decreased

6 There remain funding gaps for the later stages.

The NAO notes that many of these points have been taken on board within HMCTS. Nonetheless, the NAO argues that more should be done to demonstrate in detail how the reformed system will work. It states that it is important to sustain the committment of all those involved in the design and delivery of the new service. It implicitly criticises the Ministry of Justice for its failure to reintroduce the legislation that will be needed to ensure that aspects of the reform programme can be implemented. The NAO warns that the scale and spped of change may result in changes having unexpected consequences. And as much of the anticipated savings arise from reductions in staff, this could actually lead to an inability to deliver the service.

The public response of HMCTS has been upbeat – as indeed it has to be. A Press Release acknowledges that the programme is challenging; it summarises a number of specific changes that have been delivered; and remains confident that the programme will be successfully delivered.

My own view is that it is very important that the transformation programme is delivered. But the managerial challenge of delivering a large scale change should not be underestimated. To date, key judicial figures have been working with HMCTS to promote the need for and advantages of change. Continued judicial leadership will be essential. But I think it would be wise to develop a wider group of ‘change champions’, particularly within the judiciary more broadly and from  the legal professions. Many practitioners will accept that the current system does not serve the public well. Many will have good ideas for how things could be done more efficiently and to greater public benefit. Giving them the encouragement to voice their support for change would be highly desirable.

The NAO report is at https://www.nao.org.uk/wp-content/uploads/2018/05/Early-progess-in-transforming-courts-and-tribunals.pdf.

The HMTCS Press release is at https://www.gov.uk/government/news/hmcts-response-to-national-audit-office-report-on-court-reform-programme?utm_medium=email&utm_source=

Keeping up to date with the Transformation of our Justice System project

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I have commented before that it is quite hard for those outside Government and the Judiciary to keep abreast of developments with the Transformation project. Occasional blog items from HM Courts and Tribunals service are useful but don’t necessarily pick up all that is going on.

I therefore welcome the announcement that from June there is to be a monthly e-bulletin devoted to the programme. Those interested are able to subscribe to the service, thereby receiving regular updates.

The first edition is available at https://content.govdelivery.com/accounts/UKHMCTS/bulletins/1f03e7b

The Courts and Tribunals (Judiciary and Functions of Staff) Bill 2018

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The great Transformation of the Justice System programme, being advanced by the Ministry of Justice and HM Courts and Tribunals Service was initially supported, legislatively, by a substantial Prisons and Courts Bill 2017. This fell when the General Election was called in June 2017. (See this Blog,  March 2017 and July 2017). Since then, legal system watchers have been awaiting the return of the Bill, either in its original form or in a new guise.

Our patience is now at least partially rewarded with the publication of the Courts and Tribunals (Judiciary and Functions of Staff) Bill 2018, which was introduced into the House of Lords at the end of May 2018. As its title suggests, this is not the full legislative package originally envisaged. Rather it is a short, 4 clause Bill  Iwith Schedue) which proposes measures to facilitate the more flexible deployment of judicial and other staff.

Once enacted, the judiciary will be flexibly deployed across jurisdictions, allowing judges to gain experience of different types of cases, helping with their career progression. It will also enable judges to be used in specific courts or tribunals where there are serious backlogs of cases.

As regards the taking over of tasks currently undertaken by judges, authorised staff could carry out some of the more straightforward judicial functions, including tasks like issuing a summons; taking a plea; extending time for service of applications; or considering applications for variations of directions made in private or public law  children  cases. One noteworthy measure is that the role of the Justices’ Clerk, currently a statutory one, will become non-statutory. This will enable them to give advice on law in the Family Court as well as in the Magistrates’ Court.

Details of the Bill are at https://publications.parliament.uk/pa/bills/lbill/2017-2019/0108/lbill_2017-20190108_en_2.htm#sch1

Written by lwtmp

June 4, 2018 at 1:59 pm

Transforming the Justice system – case studies

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It is quite hard for those outside the justice system to know exactly what is going on with the overall transformation programme. But a source of really interesting material is Tribunals Journal published 3 times a year by the Judicial College. (I declare an interest – I have just been appointed to its editorial Board.)

The latest edition, published in December 2017, contains a number of interesting case studies on developments which are relevant to the transformation programme. The following items are particularly worth noting.

Lorna Findlay, who is an Employment Judge, was an early volunteer to receive training to entitle her to sit as a judge in the county court. ) One of the transformation programme’s central goals is the creation of ‘one judiciary’ whereby judges can be deployed to different areas of work.. The author describes the basic training she received and the shadowing she undertook before she started sitting as a District Judge on civil matters. Her overall impression was that the essential features of the judicial role were the same whether in the ET or in the county court.

She felt that her experience in the ET gave her more confidence in handling litigants in person, who appear more often in the tribunal, than some of her civil judicial colleagues. At the same time, she thought that procedural rules in the county court, which enable judges to give only brief summaries of key facts and grounds for decision, should be brought into the Employment Tribunal rules – ET decisions are currently notoriously and unnecessarily long in her view.

Sian Davies, another ET judge based in Wales, described a pioneering initiative to assist litigants in person. The aim was to find a way for the ET itself to be able to signpost litigants in person to sources of assistance that might help them frame and argue their cases. The obvious challenge is that the ET must not appear to be taking sides. But with the reduction in the availability of legal aid, the tribunal argued that new ways of trying to assist should be developed. One outcome has been the creation of an ET Litigants in Person Scheme, in which volunteers – acting pro bono – offer advice and assistance to parties before the tribunal. These are based in the London Central ET and Cardiff.

Meleri Tudur writes about the use of registrars and now tribunal case workers to undertake some of the more routine paperwork that historically had been undertaken by the judiciary. In some cases this had led to a significant reduction in the amount of time taken by judges on what is known as ‘box work’.

To me, these are all examples of initiatives designed to make the existing courts and tribunals service more responsive to the needs of users. Tribunals Journal should be essential reading, not just for the tribunal judiciary, but for those involved in the reform of the justice system.

The Winter 2017 number of Tribunals Journal can be found at https://www.judiciary.gov.uk/wp-content/uploads/2013/07/tribunals-journal-winter-2017.pdf

 

 

 

 

 

 

Money claims on line

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For many years it has been possible to start a small money claim by completing forms on-line and submitting them to the court.

In April 2018, following a pilot launched in July 2017, a new on-line process for making a money claim with a value of up to £10,000 (the current small claims limit)  has been launched, designed to be easier to use by potential claimants. Rather than having to fill in and post a paper form, or use the original on-line system which dated from 2002, the new pilot allows people to issue their County Court claim more easily, settle the dispute online and also recommends mediation services  (which can save time, stress, and money).

According to the Press Release announcing this decision “Early evidence [from the original pilot] suggests that the online system has improved access to justice as engagement from defendants has improved.”

At present, it seems that the only way that one can see how the new process works in practice is to go on-line and submit the details of a potential claim – this includes setting up a special account. What I think is urgently required is one of those ‘how to’ videos that are available on You Tube. (There are videos with this or similar titles but they don’t specifically refer to the new MoJ scheme.)

The press release announcing the development is at https://www.gov.uk/government/news/quicker-way-to-resolve-claim-disputes-launched-online.

If you would like to explore the money claim website more fully, it can be found at https://www.gov.uk/make-money-claim

 

RESOLVING CONSUMER DISPUTES: Alternative Dispute Resolution and the Court System

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Lawyers might think that a government research report with the above heading would/should have been published by the Ministry of Justice (MoJ). Would this not be a central theme in the Transforming the Justice System programme that is currently underway?

It may therefore come as a surprise that this is the title of a report commissioned and published by the Department for Business, Energy and Industrial Strategy (BEIS). In it consultants have looked at a number of contexts in which consumers may seek to obtain redress for problems they have with traders or other service providers.

The report seems to have been written with no account taken of the not inconsiderable body of work already done on the use of ADR in England and Wales (e.g. the reports by Professor Dame Hazel Genn). There is no reference to the court transformation programme. There is one reference to the Civil Justice Council (though not to its relatively recent paper on ADR). It is as though BEIS and MoJ are living in separate if not parallel universes, with no communication between them.

This may of course be deliberate. It is possible to imagine that BEIS – who have responsibility for promoting business and protecting consumers – have become fed up with the slow place of change in the use of ADR in the court system and want to charge ahead with their own initiatives.

What is interesting, however, is to see just how pervasive the use of ADR mechanisms are in the UK. The report sets out a list of 95 bodies who offer differing forms of ADR for the resolution of complaints and disputes. And there is an intriguing footnote citing more recent research, undertaken by Citizen’s Advice, which reveals that the total number of such scheme is approaching 150.

From the data they collected, the researchers suggest that ADR is quicker and cheaper than the courts; that those who use either the courts or ADR are in general, older, better off and better educated than consumers taken as a whole; and that these groups are in general better informed about the existence of different forms of ADR.

It is not the function of this report to argue that either use of ADR or use of the courts is to be the preferred method for resolving consumer disputes. But the researchers do, at the end, list a number of ‘indicators’ that could be used for ongoing monitoring of the use of ADR. This suggests to me that BEIS might hope to find over the years greater consumer awareness of and use of ADR schemes for the resolution of consumer disputes.

What the policy outcomes of this study will be are hard to discern from the present document. One may guess that, for modest-value disputes, use of different forms of ADR will steadily grow. What is surprising is the apparent lack of contact with others working on the reform of civil justice.

The report can be found at https://www.gov.uk/government/publications/resolving-consumer-disputes-alternative-dispute-resolution-and-the-court-system

(I am grateful to Walter Merricks, CBE, for drawing the existence of this report to my attention.)