Martin Partington: Spotlight on the Justice System

April 1 2011 sees two important changes to the infrastructure of the English Legal System.
The merger of the administrative functions of Her Majesty’s Court Service and the Tribunals Service is completed today. The new organisation will be known as Her Majesty’s Courts and Tribunals Service (HMCTS). As I argue in the book, the great challenge will be to ensure that the distinctive ethos of the tribunals service – its procedural flexibility, its willingness to be more inquisitorial than courts, its ability to specialise – are not lost.
While this change was anticipated for some months, less publicised is the fact that, also from April 1 2011, the Judicial Studies Board no longer exists. This does not mean that judicial training is being abandoned. Far from it. The decision has been taken to merge the resources available for training judges in the courts with those available for training tribunal judges. These activities will now be taken forward by a new (virtual) Judicial College.

On the same day that the Government announced how it would amend  rules on costs, it also announced that it is consulting on important changes to the organisation and practice of the civil courts. At the heart of the new proposals, there is greater emphasis on fixed costs in litigation; more extensive use of mediation; better use of court buildings (including closure of many courts); increased use of the small claims track; ensuring that only very high value civil cases can be started in the High Court; and creating more flexibility in the ways in which cases are handled in county courts. There are also proposals relating to better enforcement of decisions.

According to the Consultation Paper , the Government’s proposals are based around the following principles:

Proportionality – that disputes should be resolved in the most appropriate forum, so that processes and costs are commensurate with the complexity of the issues involved.

Personal Responsibility – that wherever possible citizens should take responsibility for resolving their own disputes, with the courts being focused on adjudicating particularly complex or legal issues.

Streamlined Procedures – that procedures should be citizen and business friendly with services focussed on the provision of timely justice.

Transparency – to ensure that there is clear information on the dispute resolution options open to citizens so that they can take action early, make informed decisions and more readily access the most appropriate services

To achieve these objectives, the paper proposes:

• Introducing a simplified claims procedure on a fixed costs basis, similar to that for road traffic accidents under £10,000, for more types of personal injury claim; exploring the possibility of extending the framework of such a scheme to cover low value clinical negligence claims; and examining the option of extending the upper limit of those simplified claims procedures to £25,000 or £50,000;

• Introducing a dispute management process and fixed recoverable costs by specific case types up to £100,000;

• Increasing the upper jurisdiction threshold for small claims (excluding personal injury and housing disrepair) from £5,000 to £10,000, £15,000 or £25,000;

• Requiring all cases below the small claims limit to have attempted settlement by mediation, before being considered for a hearing;

• Introducing mediation information/assessment sessions for claims above the small claims limit;

• Encouraging greater use of online dispute-resolution services;

• Providing a simpler and more effective enforcement regime;  and testing the public appetite for further enforcement reforms and jurisdictional changes;

• Introducing a number of jurisdictional changes in the civil courts, including the introduction of a single county court jurisdiction for England & Wales.

Alongside these proposals, the Government says it is improving the information offered to members of the public through enhanced online content available through Directgov, the Government’s central website for the citizen. New content is designed to inform the public about the full range of civil dispute resolution options available to them, including mediation, use of Ombudsmen, industry arbitration schemes and where appropriate, use of statutory regulators.

It also aims to demystify the court process itself, rendering it more navigable to the public, and provide upfront information and warnings about the time and costs involved in pursuing a path of what could be protracted litigation.

This new resource also includes a series of short audio-visual clips, which explain what happens at a court hearing; what happens at mediation; and what may happen as a result of a judgment being enforced. They also include short pieces to camera which help to explain the benefits of mediation over litigation, as well as testimonies from members of the public who have used the mediation process.

Full details are in http://www.justice.gov.uk/consultations/solving-disputes-county-court.htm
The consultation runs until the end of June 2011.

In the book I make the rather throwaway remark that I could not imagine a programme being aired on British TV similar to the programme on US tv about their Supreme Court. How wrong I was! Within the last two weeks there have been two really good programmes on the new (UK) Supreme Court.
The first, on BBC, is regrettably no longer available on the BBC i-player service.
The second, and in my view better film, aired by More 4 is still available (at least in the UK) on More 4.
I very much hope that, in due course, they will both become available on a more permanent basis, as they are a really important source of information not readily available to the public.
The More 4 programme is available at http://www.channel4.com/programmes/britains-supreme-court/4od#3161268.

The idea of closing number of court buildings – to ‘rationalise the estate’ – have been around for some time. The Coalition Government has taken advantage of the need to cut public expenditure as the basis for ordering the closure of a significant number of court buildings that received relative little use. Nearly 150 of the 530 buildings currently used by the Court Service will be closed.
Of course, there will be much local sadness at the loss of some of these buildings. But it is hard to argue that under-used building should be retained.
Nevertheless, it is important that this closure programme does not lead to increase difficulty in accessing court buildings. Greater use of modern communication technologies should do much to prevent major access problems.

The press announcement can be found at http://www.justice.gov.uk/news/newsrelease141210a.htm

Two recent news items have considered the use of mediation as a form of Alternative Dispute resolution. In the first, Jeremy Tagg an official in the Ministry of Justice, was presented with the Lord Slynn Mediation Prize for leading a drive to see more disputes settled out of court.

He was picked as winner for his role in the development of both the National Mediation Helpline (NMH) and the HMCS Small Claims Mediation Services (SCMS).

The SCMS has conducted more than 10,000 mediations in each of the past two years and continues to receive exceptionally high levels of customer satisfaction – 98 per cent of users say they are satisfied or very satisfied with the professionalism and helpfulness of the mediators and 95 per cent say they would use the service again

The second relates to statements recently made on the Today programme by Jonathan Djangoly, Justice Minister, urging greater use of mediation in Family disputes. Some family practitioners might take issue with his assertion that family lawyers are not sufficiently aware of mediation to resolve family disputes.

Nevertheless, it is still the case that there is a lack of awareness of the potential of mediation to resolve disputes and an assumption (at least by lawyers) that it is being promoted simply to reduce costs; there is considerable evidence, however, that mediation – when properly used – promotes better outcomes for parties.

Further details on both announcements can be found on the Ministry of Justice website

Although the results of the Government’s Comprehensive Spending Review are not officially published until 20 October 2010, the widely publicized leaks of the quangos that are likely to be axed suggest there could be some significant change in the legal landscape.

Many of the bodies considered in my book are under threat: they include the Administrative Justice and Tribunals Council, the Civil Justice Council, the Family Justice Council, the Legal Services Commission, many of the Boards that look after local courts, a number of tribunals – even the future of the Law Commission is, according to reports, not secure.

For the list as published in the Daily Telegraph see: http://www.telegraph.co.uk/news/newstopics/politics/8021780/Quango-cuts-full-list-of-bodies-under-review.html

In April 2010, I noted the statement of the then Labour Lord Chancellor that he intended to merge the Court service and the Tribunal service. This programme, the Courts and Tribunals Integration Project, is – under the new Government – developing rapidly. On September 15th, the Conservative Lord Chancellor  announced that he hopes the new integrated structure will start to operate in April 2011.

This will have profound implications for the judiciary who work in both the courts and the tribunals. While it may well enable those who manage court business to use judicial manpower more flexibly, the merged framework may well result in the loss some of the well recognised advantages of tribunals, namely their informality of procedure, ‘the enabling role’ and similar attributes.

I have argued elsewhere that courts have much to learn from tribunals, in particular how to handle litigants in person. However, the ignorance of most court judiciary about the work and ethos of the tribunal judiciary will mean that, without strong and enlightened judicial leadership, such lessons are unlikely to be learned.

The Lord Chancellor’s statement is at http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm100916/wmstext/100916m0001.htm#10091614000227