Martin Partington: Spotlight on the Justice System

The Government has recently announced plans to change the ways in which the civil justice system works. These are the outcome of the Consultation exercise launched in 2011. The principal changes are:

1. Expanding mediation by building on the mediation service for those who have small claims. This service has received very high levels of customer satisfaction, and has been used to resolve almost 15,000 disputes over the past two years. And, since it is primarily a telephone-based service, that means up to 30,000 parties that have been able to resolve their disputes without ever having to travel to court. With the introduction of automatic referral to the small claims mediation service, the Government wants to see this service expand to offer mediation to all 80,000 disputes that are currently allocated to the small claims track (i.e. those under £5,000).

2. Expanding the small claims track, initially to £10,000. Many of the cases that fell into the small claims track back in 1999,  when Lord Woolf’s reforms were introduced, are now routinely treated as fast track cases with associated costs. The Government may consider a further increase to £15,000 in due course. The current lower limits for housing and personal injury cases will be unchanged. In addition, judges will have power to transfer suitable business to business cases with a dispute value over £10,000 to the small claims track without requiring the consent of the parties. The judiciary will also have the option of referring more complex cases with a case value below £10,000 to the fast track if that is  considered appropriate.

3 Introducing a fixed-cost simplified claims procedure for more types of personal injury claims, similar to that which was introduced in 2010 for road traffic accidents under £10,000.

4. Going ahead, as soon as is feasible with proposals for streamlining enforcement processes, implementing some of the Courts, Tribunals and Enforcement Act provisions and to introduce a minimum threshold for Orders for Sale.

5. Making  structural reforms  This will include  introducing a single county court jurisdiction for England and Wales, which will facilitate greater flexibility in the use of courts around the country and enable more proceedings to be issues from centralised processing centres. A number of specialist areas of work will be removed from the county court and transferred to the High Court. The Government will increase the financial limit below which equity claims may be commenced in the county courts from £30,000 to £350,000. And the financial limit below which non-PI claims may not be commenced in the High Court will be increased from £25,000 to £100,000.

Many of the more potentially interesting changes floated in the original consultation paper, e.g. greater use of telephone hearings, more cases determined on the papers alone, have been left on the back-burner at least for the time being.

The Response paper does not set out a timetable for the implementation of these changes; but since none of them seems to require legislation, it is presumed that they will come about by administrative decision in the coming months.

It is notable that, with the honourable exception of the Guardian, none of these important reforms appear to have been thought worth a mention in the mass news media; but these are exactly the sort of changes that are relevant to the wider public, not just to lawyers.

The press release is at http://www.justice.gov.uk/news/press-releases/moj/pressrelease090212a.htm

The full response is at http://www.justice.gov.uk/downloads/consultations/solving-disputes-in-cc-response.pdf

The Department for Business, Innovation and Skills is seeking views from UK stakeholders on recent proposals from the European Commission on consumer alternative dispute resolution. In summary, the Commission argue that all EU consumers should be able to solve their problems without going to court, regardless of the kind of product or service that the contractual dispute is about and regardless of where they bought it in the European Single Market.

In addition, for consumers shopping online and from another EU country, the Commission want to create an EU-wide single online platform which will allow contractual disputes to be solved entirely online and within 30 days.

As the proposals are likely to impact UK consumers, businesses and organisations that currently provide alternative dispute resolution services, the Department is particularly anxious to receive views on the likely scale of these impacts. Views received will help form the UK’s negotiating position.

The consultation has been running since November 2011, and closes at the end of January 2012.

The full consultation can be found at http://www.bis.gov.uk/Consultations/call-for-evidence-eu-proposals-dispute-resolution?cat=open

From 1 October 2011, the National Mediation Helpline has been replaced by a new on-line directory of accredited mediators, who provide mediation services for people in dispute on a civil law matter. Mediation is provided for a fixed fee, which varies according to the amount of money in dispute. The fees are set out on the first page of the website. It makes the process of finding a mediator very easy and is clearly designed to encourage use of mediation in the dispute resolution process.

For details see http://www.civilmediation.justice.gov.uk/

Unlike the situation in many other countries, the televising of court proceedings has not been a central feature of the English Legal System.

There are signs of significant change on the horizon.

First, the Supreme Court has already decided not only to let television companies make documentary programmes about its work (see this blog Feb 2011) but also to enable Sky TV viewers to see full broadcasts of its proceedings. For further details see http://news.sky.com/home/supreme-court.

Second, Justice Minister Ken Clarke has announced that limited televising of proceedings will be allowed. Initially this will be limited to the Court of Appeal where filming will be of judges’ summary remarks only;  victims, witnesses, offenders and jurors will not be filmed. He has stated that this may be extended to the Crown Court at a later date.

This second step will not take place overnight, however. Legislative change is required to repeal  Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981, which currently forbid the broadcasting of court proceedings. See further http://www.justice.gov.uk/news/press-releases/moj/moj-newsrelease060911a.htm.

One consequence of these developments may be that members of the public who think that most cases are heard by courts will be reinforced in this view, whereas readers of the book will know that in every area of the law, save perhaps family law, great number of issues are disposed of outside court proceedings.

Nonetheless, I welcome this development and suspect that in a year or two people will wonder why we took so long to reach this position.

The Legal Aid, Sentencing and punishment of offenders Bill 2011 is the big one, certainly so far as the legal system is concerned. It is a complex measure, attempting to achieve three quite distinct policy objectives. Underpinning much of it is the Government’s desire to cut public expenditure.

This is seen most clearly in Part 1 which deals with legal aid. The long awaited abolition of the Legal Services Commission is contained in the Bill, together with provision of the appointment of a Director of Legal Aid who will head up a new agency within the Ministry of Justice. In practical terms, it is the changes (i.e. cuts) to civil legal aid that are likely to have the most significant impact on the ground. The Bill gives legislative effect to the Government’s proposals to make fundamental changes to legal aid – which will take a lot of issues currently in scope of the legal aid scheme out of the scope of legal aid, will increase the charges paid by members of the public for getting legal aid assistance and reduce the sums paid to lawyers who provide legal aid services.

Arguments that have been made by many – not just lawyers – about the impact these changes will have on access to justice have been met by the Government’s counter argument that the UK spends too much on legal aid – far more than most other countries. It has to be said, however, that by comparison with the proposals for reform of sentencing (see below) these changes have not actually received much attention in the mass media.

Details of the proposals for change can be found at http://www.official-documents.gov.uk/document/cm80/8072/8072.pdf.

Part 2 of the Bill deals with recommendations of Lord Justice Jackson about making changes to the current system of ‘no-win-no-fee’ Conditional Fee Agreement cases, to limit the amounts that lawyers can charge by way of success fees.

The Government argues: [CFAs] have played an important role in extending access to justice but they also enable claims to be pursued with no real risk to claimants and the threat of excessive costs to defendants. It cannot be right that, regardless of the extreme weakness of a claim, the sensible thing for the defendant to do is to settle, and get out before the legal costs start running up. This is precisely what has happened and it is one of the worst instances of this country’s compensation culture…

[T]he Government believes that the right way forward is to abolish the recoverability of CFA success fees and ATE insurance premiums.

The Bill provides for these changes: for more detail see also http://www.official-documents.gov.uk/document/cm80/8041/8041.pdf.

The final part of the Bill deals with proposals for reforming sentencing. These issues were debated heavily in the press, with the Justice Secretary facing a lot of criticism that he was being ‘soft on crime’ – wanting to keep people out of prison to save money. The quite respectable argument – which at the least demands a careful hearing – that more might be done to turn people away from crime if they were not in prison was a subtlety that got lost in much of the mass media.

In the light of the decision not to proceed with the idea for giving those pleading guilty to charges a higher discount from their sentence than they can currently get, the Bill’s proposals are more modest than were originally envisaged by the Government when it published its Consultation Paper on the reform of Sentencing in November 2010.

The Bill is currently in the Committee stage, which will end in mid-October 2011. I estimate that the Bill will pass into law early in 2012.

Details on all three components of the Bill will be considered further here and in the book in due course.

One of the trends in the practice of law noted in the book is the increased globalisation of the provision of legal services. Two recent Government announcements indicate just how important this work is, not just to our legal system but to the overall economy. They also indicate how competitive the legal services market is becoming in a globalised world. If the UK does not offer what global businesses want, business will go elsewhere.

The Government’s Action Plan ‘Promoting the UK’s Legal Services Sector’ was published in May 2011. It is available at http://www.justice.gov.uk/downloads/publications/corporate-reports/MoJ/legal-services-action-plan.pdf.
It sets out objectives which the Government will be seeking to support over the next few years, which will be incorporated in the upcoming MoJ Business Plan.
The second announcement is that a new ‘state of the art’ court building for dealing with commercial disputes – the Rolls Building – is scheduled to open in the Autumn 2011. A note on the progress of this initiative, for which the judiciary and commercial lawyers have long been pressing, was made at the end of May 2011. See http://www.justice.gov.uk/news/features/feature310511a.htm

There has been much controversy in recent months about the use of ‘super-injunctions’ to prevent the press and broadcasting media from reporting details of the private lives or confidential affairs of the rich and powerful. (I leave to one side the very practical question of the extent to which such super-injunctions can – because of Twitter and other social e-media – actually be effective in keeping the lid on confidential matters.)

Much press reporting of the issue might lead to one the view that the development of super-injunctions has been the result of the senior judiciary seeking to develop new legal principles, in the teeth of opposition in Parliament. (Of course there is nothing new in this as an idea – many of the fundamental principles of the law of England and Wales have been developed by the senior judiciary.)

The recent publication of the report on super-injunctions, written by the Master of the Rolls – who led a team of experts, including representatives of the press – seeks to offer a more reasoned analysis of what has been happening.

This shows, first, that it was Parliament that, by enacting the Human Rights Act 1998, created the conditions in which the judiciary was required to balance the competing rights to freedom of expression and privacy in individual cases.

The report also emphasises that there is an important distinction to be drawn – which recent reporting has often failed to do – between ‘super-injunctions’ and ‘anonymised injunctions’.

A super-injunction is an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, (ii) publicising or informing others of the existence of the order and the proceedings.

An anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.

Again, contrary to the impression given in many press reports,  since January 2010, only two super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days. In practice, super-injunctions are now only being granted, for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed.

While there has been an increase in the number of cases which are anonymised, the law on anonymisation has been clarified in two recent Court of Appeal decisions. When anonymised orders are made, the court should wherever practicable provide a reasoned judgment for its decision.

The Committee produced draft Guidance setting out the procedure to be followed when applying for injunctions to protect information said to be private or confidential pending trial. This procedure will enable the media to be informed about applications in advance as Parliament envisaged when it passed section 12 of the Human Rights Act 1998.

The Master of the Rolls has asked HMCTS to monitor these cases in future to see whether the changes to procedure proposed are having the desired effect.

The full report of the Master of the Rolls’ Committee can be found at http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/super-injunction-report-20052011.pdf