Martin Partington: Spotlight on the Justice System

Not exactly like the OJ Simpson trial in the US, but a very small next step has been taken in giving the media direct access to proceedings in Court. From 5 October 2013, five courtrooms at the Royal Courts of Justice – which houses the Court of Appeal – have been wired to allow broadcasting to take place.

Cases will not be shown in full. Rather, the broadcasters – BBC, Sky, ITV and Press Association – will be able to film proceedings from only one court room on any given day. They will agree which courtroom and will inform the judiciary the day before.

They will be able to show the footage for the purpose of news reporting only – i.e. not streamed live. All costs associated with filming within the Court of Appeal have been met by the broadcasters involved.

Advocates’ arguments, and the judges’ summing up, decision and (in criminal cases) sentencing remarks may be filmed.
Victims, witnesses and defendants will not be filmed.

In general I welcome this modest development. I do hope that when further decisions about broadcasting proceedings are taken, consideration will be given to alternative procedures, like tribunals or other forms of alternative dispute resolution, which the ordinary citizen is far more likely to encounter in real life.

Further information is at https://www.gov.uk/government/news/landmark-day-for-justice-television-broadcasting-in-courts-goes-live

One poorly understood development in the civil litigation field is that of litigation funding. This refers to the practice of the provision of financial resources to a claimant so that litigation can proceed. Litigation Funding is the arrangement through which a litigant obtains the financing of all or part of its legal costs from a private, commercial Litigation Funder who has no direct interest in the proceedings. In return, and assuming the case is won, the funder will receive an agreed share in the proceeds. If the claim is, however, unsuccessful, the funder will lose its money and nothing will be owed to it by the litigant.

The share in the proceeds is negotiated between the funder and the litigant. This financial reward of the funder can take a variety of forms. It typically consists of either a percentage of the damages recovered, or a multiple of the amount advanced by the funder, or combination of these options. Litigation Funding provides a cost effective financing tool that must be taken into consideration by solicitors when planning the funding of a case. Solicitors will have to bear this in mind when advising on this issue.

The Litigation Funding market in the UK has, in the last decade, experienced increased mainstream attention due to its potential to provide a valuable means for access to justice, particularly for SMEs.

However, Litigation Funding is not a substitute for legal aid. This financing tool is currently limited to commercial cases of a high value. It is not suitable for consumer cases, personal injury cases or generally claims that do not carry a sufficiently high level of damages.

For more information go to http://associationoflitigationfunders.com/

Since 2010, there has been a special procedure for dealing with claims for personal injuries arising out of Road Traffic accidents, where the amount of damages sought is under £10,000.

From 31 July 2013, the financial limit for the use of the procedure has been lifted to £25,000. At the same time, the procedure has been extended to claims arising from personal injuries at work (Employer’s Liability cases) and from personal injuries suffered by members of the public as the result of a company or its employees failing to take reasonable care (Public Liability cases).

A new electronic portal, the Claims Portal, has been developed to ensure that all such claims are processed speedily, incurring only fixed costs, and in a way that is compliant with the relevant pre-action protocols. The Claims Portal is run by a not-for-profit company, with 8 directors representing both potential claimants (e.g. the Trades Union Congress) and potential compensators (Insurance companies).

Of course, if liability for an accident is not admitted, or agreement cannot be reached about the amount to damages to be paid, the claim will not be finally resolved through this process. It is however anticipated that for straightforward cases, the portal will speed the process and reduce the costs.

The changes have been brought about by amendment to the Civil Procedure Rules.

For a government press release on the changes go to https://www.gov.uk/government/news/action-on-compensation-claims-for-slips-and-trips.

For the Civil Procedure Rules go to http://www.justice.gov.uk/courts/procedure-rules/civil (scroll down to Release 65).

For more information about the Claims Portal go to http://www.claimsportal.org.uk/en/about/about-claims-portal-ltd/

For a useful summary of the changes – written by an insurance company, go to http://www.allianz.co.uk/home/search-results.html?searchQuery=claims+portal and click on MOJ Reforms

This blog up-dates my book at Box 8.3 para 4

The Queen’s Speech 2013 contains few measures that seem likely to impact directly on the English Legal system. The two most obvious candidates are:

1. Offender Rehabilitation Bill

This is designed to extend statutory supervision after release to offenders serving short custodial sentences, allowing probation providers to deal with the causes of re-offending. This would mean that all offenders released from prison will receive at least 12 months’ statutory supervision.

For sentences served in the community, the Bill would create greater flexibility for probation providers so that they are free to deliver innovative and effective interventions to tackle re-offending.

The main benefits of the Bill would be to:

• Reduce re-offending rates for the most prolific offenders.
• Support Government plans to open up probation services to a wide range of providers(including private and voluntary sector providers) through competition and develop use of a system of payment by results for providers

The Bill would provide for drug-abusing offenders to be required to attend treatment appointments, and expand the drugs that an offender can be required to be tested for from class A to class B.

The Bill would create a new rehabilitation activity requirement that can be imposed as part of sentences served in the community. This would provide a flexible requirement within which probation providers can require offenders to attend appointments or activities that support their rehabilitation.

2. Anti-social Behaviour,  Crime and Policing Bill which  contains a variety of measures including policies to tackle anti-social behaviour, forced marriage, dangerous dogs and illegal firearms used  by gangs and in organised crime. It also includes measures to enhance the professional capabilities and integrity of the police, and continuing the process of modernising police pay and conditions.

3. Immigration Bill may have a significant impact on rights of appeal in immigration disputes.

In addition there are two draft Bill which will have an impact on the English Legal system, when enacted.

1 Draft Deregulation Bill, be published in draft for pre – legislative scrutiny. While many regulations are being scrapped and reformed either administratively or via secondary legislation, the main aims of this Bill are, in the Government’s words, to:

• ·         Reduce or remove burdens on businesses and Civil Society and facilitate growth
• ·         Reduce or remove burdens on public bodies, the taxpayer or individuals
• ·         Tidying up the statute book by repealing legislation that is no longer of any practical use.

 2 Draft  Consumer Rights Bill, designed to

•  Give consumers clearer rights in law and to make sure that consumer rights keep pace with technological advances.
• Provide important new protections for consumers alongside measures to  reduce regulation for business, all with the aim of making markets work  better.

One of the policy features which underpin the civil court system is that the civil courts should as far as possible be self-funding. (This aim does not currently include judicial salaries and pensions.)
The current position is that in 2011/12 the cost of running the non-criminal business administered by Her Majesty’s Courts and Tribunals Service (HMCTS) was around £713m. Of this amount 67% was funded through fees (£480m) with the remaining 33% funded by the taxpayer (£233m) as part of the Ministry of Justice’s spending settlement.

The tax-payer subsidy is made up of two elements:

• Fees set below full-cost levels, i.e. the fee charged does not cover the actual cost to the court or tribunal of processing the work being charged.

• Fee income foregone under a system of fee remissions (waivers). In 2011/12 approximately 171,000 fee remissions were granted at a total value of £27.8m.

The Government’s overall aim is to reduce the taxpayer subsidy for the civil business by ensuring that fee income covers 100% of the cost of providing services, minus the income foregone to the remission system. For tribunals the aim is to maximise cost recovery and separate targets below full cost recovery have been agreed by the Ministry of with Her Majesty’s Treasury.

To achieve this objective, basic fees will need to rise – to address the first point.

This blog refers to a consultation on the second issue – fee remission – designed to introduce great uniformity of approach and better targetting of the remission regime to the very poor. In effect, the remission system relies on a means-test, and the consultation paper indicates that the means-test will become tougher for all but the very poor.

Details of what the Government is proposing are set out in https://consult.justice.gov.uk/digital-communications/fee-remissions-court-tribunals/consult_view

One point should be noted. In the good old days, it was a principle of government that any consultation should last for at least 3 months – to enable those who might wish to comment find the time to assemble their thoughts, and draft their responses. There is a notable current trend that consultation periods should be much briefer. The consultation period for the current exercise is only a month. The consultation on the judicial review changes, noted before, was similarly attenuated.

Do you get fed up with all those text messages or telephone calls inviting you to claim for an accident you never had or a PPI policy that you never bought?

The Ministry of Justice tries to regulate this seemingly uncontrolled and often unethical sector of the legal services market.
As a cheering end of year news item, the Ministry of Justice website published a press release that reports that between April and November 2012 209 companies were shut down and had their licences removed, three have been suspended and 140 have been warned.

This comes ahead of Government plans next year to give consumers even more protection against rogue firms. This includes making all businesses agree written contracts with customers before taking fees and an independent consumer complaints service which can compensate those who have received a raw deal.

For detail see http://www.justice.gov.uk/news/features/claims-management-crackdown

Since 2008, when section 194 of the Legal Services Act 2007 came into force, it has been possible for litigants who are assisted on a pro bono (for free) basis to ask for some costs from the losing side.
They do not get the money for themselves since, by definition, their case has been argued for nothing. But any pro bono costs that are awarded are paid to a nominated charity – the Access to Justice Foundation – which can then use the funds to promote other legal service activities.
The sums involved in no way compensate for the cuts the legal aid that will start to bite in April 2013. But it is a development which, while still in an embryonic stage, may help to create new ways of providing at least some access to justice.
More detail of the work of the Access to Justice Foundation is at http://www.accesstojusticefoundation.org.uk/

As well as ministerial changes there have been changes in two of the top judicial jobs.

Lord Phillips, who was the first President of the Supreme Court, reached retirement age this autumn. He is replaced as President, from 1 October 2012, by Lord David Neuberger – who was formerly the Master of the Rolls. See http://www.supremecourt.gov.uk/news/new-president-of-the-supreme-court.html.

The resultant vacancy as Master of the Rolls is filled by Lord John Dyson, currently a member of the Supreme Court. See http://www.number10.gov.uk/news/appointment-of-master-of-the-rolls/

The Queen’s speech which sets out the Government’s legislative proposals for the forthcoming year, was delivered on May 9 2012. While the headline media commentary was largely on the economy, there are matters in the proposals which – if enacted – will have an impact on the English Legal System. These are listed here, so that readers can take note of them and follow how they come into legislative form:

1 House of Lords reform – this is potentially the ‘big one’ in terms of constitutional change and political controversy. It is far from certain that sufficient political consensus will be created – in particular within the Coalition – to make its enactment an inevitability.

2 The Enterprise and Regulatory Reform Bill will contain proposals which will impact on the work of Employment Tribunals, and seek to ensure that more employment disputes are resolved by conciliation.

3 The Groceries Adjudicator Bill will create a new scheme for adjudicating disputes between consumers and the ‘big name retailers’ – thus another area of disputes will – in effect be removed from the courts. (There are over 60 industry adjudication schemes already in existence in the UK – many of them not well understood but doing work of resolving disputes that otherwise might have gone to courts).

4 The draft Local Audit Bill will, if enacted, abolish the Audit Commission, which audits the activities of local government.

5 The Children and Families Bill will amend the law on adoption. It will also bring into law changes to the Family Justice system recommended by the Norgrove report.

6 The Electoral Registration and Administration Bill will make it easier for people to register to vote.

7 The Crime and Courts Bill will give statutory authority for the creation of the National Crime Agency. It will also amend some of the current provisions relating to the making of judicial appointments. It also provides for the televising of some court proceedings.

The question of the relationship between the English Legal System and in particular the UK Supreme Court and the European Court of Human Rights has been generating a lot of political heat in recent months – much of it deriving from the decision in the case Abu Qatada – who the British Government was to deport to Jordan for trial, but who – it is feared – may have evidence obtained by torture used against him. The political fallout from this very controversial case has been significant, with many people demanding that the UK no longer acknowledge the jurisdiction of the European Court.

By chance, in April 2012 – during the UK Presidency of the Council of Europe – a conference was held in Brighton designed to consider proposals for the reform of the court. In the event, the ‘nuclear option’ of the UK withdrawing from the Convention was averted and instead a number of reforms were agreed, designed to rebalance the relationships between Strasbourg and national supreme courts.

In outline, the Brighton Declaration does the following things:

• Makes proposals for amending the Convention to include the principles of subsidiarity and the margin of appreciation – this should give more power to domestic courts t0 decide matters without intervention from Strasbourg;
• Proposes amending the Convention to tighten the admissibility criteria- so that trivial cases can be thrown out and the focus of the Court can be serious abuses
• Reducing the time limit for claims from six months to four
• Improving the selection process for judges
• Setting out a roadmap for further reform.

The full text of the Brighton Declaration is at http://www.coe.int/en/20120419-brighton-declaration/

It will be realise that while what has been achieved may be useful first steps, the final implementation of the reform proposals will take some time to complete.