Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 8’ Category

Considering the case for a specialist housing court

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In November 2018, the Government published Considering the case for a Housing Court: call for evidence. It sought evidence in particular from the judiciary, landlords and tenants to help the government better understand and improve the experience of people using courts and tribunal services in property cases.

It is not hard to think of other groups who might also provide useful evidence, such as lawyers, housing advisers, letting agents and other property professionals.

The Consultation made clear that, included in the ideas being considered was whether there was a case for the creation of a specialist Housing Court.

In its press release, the Government stated that it particularly sought evidence on:

  • private landlord possession action process in the county court
  • user experience in both the county courts and the First-tier Tribunal for property cases
  • case for a new Housing Court
  • case for other structural changes such as an extension of the remit of the property tribunal.

Little attention was given to the important question of whether any changes could improve access to justice. There is good evidence that many – both landlords and tenants – with potential legal disputes do not use the courts to resolve those disputes. (In relation to this, the Paper did ask whether better information might be helpful.)

The Consultation Paper  indicated that there were two principal options being considered.

Either, changes might be made to the ways in which the courts and first-tier tribunal operated to ensure that between them they could deal with cases more cost-effectively and efficiently. (In essence this covered the same ground as that considered by Judge McGrath in her recommendations to the Civil Justice Council, see this blog previous item).

Or, a specialist Housing Court might be created. (The Consultation did not specifically seek views on the creation of a more broadly based Housing Tribunal on the lines of developments in Scotland. )

The Consultation Period is now closed. Decisions are awaited.

For further information on the Scottish Housing Tribunal see https://www.housingandpropertychamber.scot/

 

 

 

 

 

 

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Written by lwtmp

February 8, 2019 at 12:11 pm

Dealing with housing disputes: proposals from the Civil Justice Council

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Housing Law is complex – a large number of statutes attempt to regulate the housing market, in particulat the relationship between landlords and tenants. Housing Law potentially affects both renters (who rent their accommodation on a monthly basis) and leaseholders (who have a long-term interest in the property they live in).

The law has created a vast number of legal rights and responsbilities. It has also created different pathways for the resolution of disputes. In particular, some cases need to be dealt with in the county court, others go to the Property Chamber in the First Tier Tribunal.

One problem with this is that there are circumstances which arise in practice where – in order to fully resolve the dispute – the claimant may need to start proceedings in both the county court and the first tier tribunal. This is obviously wasteful of time and resources – very frustrating for those caught up in an almost Dickensian-like jurisdictional battle.

This is not new; the issue has been acknowledged for some time. The Civil Justice Council has, however, been trying to do something practical to solve the problem. In 2015 it established a working group on property disputes to consider whether access to justice in property disputes could be improved by the deployment of judges to sit concurrently in courts and tribunals. In other words, those appointed as tribunal judges could in relevant circumstances be authorised to sit as county court judges and vice versa.

Following a pilot, Judge Siobhan McGrath, Property Chamber President, in November 2018 published a proposal and recommendations to amend the Civil Procedure Rules and the First-tier Tribunal Procedure (Property Chamber) to reflect this. In her report she stated that her preferred solution was to deploy judges to sit concurrently in the court and the tribunal. The deployment of judges to sit in both the court and the tribunal concurrently would, in Judge McGrath’s view, provide a practical solution to a difficult challenge.

She stated that ‘The concept is supported by the MoJ who have agreed to provide resource to explore rule changes in more detail; to engage with judiciary and the Civil Procedure Rules committee and the Tribunal Procedure Committee and to provide analytics about the practical impact of deployment.’

What the status of this recommendation is is currently no clear; it is likely to have got wrapped up in the consultation on the creation of a Housing Court – which is the subject of a separate blog item.

To see Judge McGrath’s report, visit: https://www.judiciary.uk/wp-content/uploads/2018/11/property-chamber-deployment-project-report-oct2018.pdf

 

 

 

Review of the work of enforcement agents (bailiffs)

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Legislative changes to the rules regulation the work of debt enforcement agents were introduced in 2014. They were the subject of an initial post-implementation review in 2015. The Government has announced (25 November 2018) a second post-implementation review to see what further changes may be needed to the regulatory framework.

The Government is interested in hearing from people who have been contacted by enforcement agents: enforcement agents, creditors, debt advisers, the judiciary and anybody else with experience of working with enforcement agents.

The Consultation runs until February 2019. For details see https://www.gov.uk/government/consultations/review-of-enforcement-agent-bailiff-reforms-call-for-evidence.

Written by lwtmp

November 29, 2018 at 12:22 pm

Keeping the ‘Transformation: Courts and Tribunals 2022’ programme under review

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In June 2018, I noted here the critical report from the National Audit Office  – published in May 2018 – on the Transformation: Courts and Tribunals Programme 2022.

The NAO report was reviewed by the Public Accounts Committee , which took evidence from the Ministry of Justice and HM Courts and Tribunals Service. In July 2018, it published a pretty brutal report which listed a number of concerns about the programme and set out a number of recommendations on the way forward.

The PAC found, in summary:

  1. It had little confidence that HMCTS can successfully deliver this hugely ambitious programme to bring the court system into the modern age.
  2. It found that HMCTS had failed to articulate clearly what the transformed justice system would look like, which limits stakeholders’ ability to plan for, and influence the changes.
  3. Despite revising the timescale, it thought that HMCTS’s imperative to deliver at such a fast pace risked not allowing time for meaningful consultation or evaluation and could lead to unintended consequences.
  4. The Committee thought HMCTS had not adequately considered how the reforms will impact access to, and the fairness of, the justice system for the people using it, many of whom are vulnerable.
  5. It found that, one third of the way through the programme, the Ministry of Justice still did not understand the financial implications of its planned changes on the wider justice system.
  6. The Committee remained concerned that the Ministry of Justice was taking on significant amount of change, without a clear sense of its priorities, at a time when it is facing severe financial and demand pressures.

In relation to findings 1, 2 and 4 above, the Committee wanted HMCTS to start producing update reported on a regular 6 month basis, starting in January 2019.

In relation to finding 3, it wanted, by November 2018, HMCTS to publish plans on how and when it will engage with stakeholders and be clear about how it will act on the feedback received and adjust plans if necessary.

In relation to findings 5 and 6 it recommended regular updates from the Ministry of Justice, again starting in January 2019.

The Government has just announced that it has agreed to all the PACs recommendations.

As I said in my original comment on the report from the National Audit Office, my personal view is that it is essential that the justice system is modernised. Doing nothing is not an option. While stern criticism may well help to ensure that the Director of the reform programme keeps her eye on the ball, I also think that it is important to support those working on the reform programme. Such harsh criticism could be extremely undermining of staff confidence and could paradoxically increase the chances of some of the negative outcomes listed by the Committee coming to fruition.

I will keep readers of the blog posted as and when new material is published.

The NAO report is at https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/

The PAC report is at https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/976/97602.htm

The Government’s response is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/746797/CCS001_CCS1018676736-001_Treasury_Minutes_Gov_Resp_43-58_Cm9702_Web_Accessible.pdf

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Transforming civil justice: current projects – progress reports

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In the civil jurisdiction, existing processes can be protracted, inefficient and costly. The Government’s aim is to create a system that enables people to manage and resolve a dispute fairly and speedily.

  • This will involve more mediation and fewer hearings.
  • It will involve simpler processes and online routes into and through the courts – providing good quality digital systems to support the civil system, which at present is very paper-heavy, and allowing the kind of digital working in civil courts that legal professionals and others have become used to in the criminal court.

Initial focus is on those proceedings that most often engage the civil courts, in particular the county court – money claims and possession claims. In addition there is an important infrastructural programme to enable the High Court to function more efficiently. In a little more detail:

1. Online Civil Money Claims:
This project started by developing a digital service that allows users to resolve civil money claims in a simple, accessible and proportionate way.
In August 2017, HMCTS launched a controlled test where users were invited to use
the new online service and by March 2018, 1,500 claimants issued claims within it. Over 80% of those users, including claimants and defendants, told us the service was very good and easy to use.
Further evidence suggests that the online system has improved access to justice, with engagement from defendants being higher than in the traditional civil money claims service.
HMTCS used feedback to keep improving the service, and opened it up to all users
on 26 March 2018. As well as allowing issue and defence of claim, the system allows without-prejudice offers to be made and accepted (and constructs agreements based on these offers and acceptances).
90% of users of the service since March have been satisfied or extremely satisfied with the new service.
The service is accessed at https://www.gov.uk/make-money-claim
A version of the system designed to support legal professionals who are managing multiple claims on behalf of their clients, is currently being tested with 10 firms. This should be  rolled out later in 2018.
Next steps will be to build further stages of the system, allowing more online negotiation
and settlement; upload of evidence; giving judges the facility to decide cases ‘on the digital papers’ but also to ask questions and seek clarification from parties; as well as providing the digital underpinnings for cases going to and through hearings.
2. Possession
The assured shorthold tenancy possession claim process will be made digital. As a first step, administrative processes will be improved, automated and streamlined to make them more efficient and reliable. The project will start formally in October 2018.
3. The Royal Courts of Justice
This project aims to deliver a digital case management system for the civil jurisdictions of the High Court and Court of Appeal, Upper Tribunal, the Employment Appeal Tribunal, Regional Business and Property Courts and District Registries.
As with the county court jurisdiction this will enable claims to be issued and responded to and cases managed by the court digitally. The project will also improve the hearing stage of the service by enabling evidence and e-bundles to be uploaded and shared
digitally and presented digitally at hearings. The project began in June 2018 and aims to deliver the new case management system to 2 of the jurisdictions this year.
A fourth project, on enforcement of judgements, has been put on hold.
This information has been derived and adapted from Reform Update Autumn 2018, published by HMCTS, and available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744235/Reform_Update_issue_2_September_2018.pdf

Transformation: Court and Tribunals 2022 – progress reports

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I have observed before that it is quite hard for someone outside HM Court and Tribunal Service to keep up to date with progress with the Transforming our Justice System, now Transformation Courts and Tribunals 2022, reform programme.

For some time there has been an occasional blog, setting out information about a number of initiatives.

In recent months, a monthly Bulletin (also called an electronic Newsletter) has been launched, the latest of which, published on 1 Oct  2018 contains links to a detailed report Reform Update, Autun 2018, setting out the story so far.

The transformation programme is a very substantial one – it consists of some 50 projects. Not all of them have yet started and very few have as yet been completed. Many ideas are, quite rightly, being tested and evaluated before being nationally rolled out.

The easiest way to get an overview of the projects and their progress is to look at the summary table of the report (pp 22-26).

I will be adding further detail on these projects, dividing the information into broad subject headings.

The monthly bulletin can be accessed by clicking on the link under the heading Newsletter at https://www.gov.uk/government/news/hmcts-reform-programme.

The Reform Update report can be seen at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744235/Reform_Update_issue_2_September_2018.pdf

The Inside HMCTS blog can be accessed at https://insidehmcts.blog.gov.uk/

 

 

 

 

 

 

 

Employment Law Hearing Structures: Consultation from the Law Commission

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The headline features of the Transformation: Courts and Tribunals 2022 programme have been about major changes to the ways in which courts and tribunals work: on-line courts, digitization of process, investment in IT and so on.

But in parallel with these major changes, other more technical changes are being contemplated which it is hoped will improve the efficiency of the work of courts and tribunals.

The recently announced (26 September 2018) consultation paper Employment Law Hearing Structures is an example of how the government is seeking to take this opportunity to make some technical changes to the ways in which  courts and tribunals dealing with employment and discrimination cases interact.

For example:

  • At present Employment Tribunals can only claims for contractual damages, where the damages claimed are below £25,000;
  • Employment Tribunals operate on a ‘no-costs’ basis – i.e. the winner of the case cannot seek an order for costs from the losing party;
  • Employment Tribunals have no power to make an order to enforce a decision that it has made.
  • Courts have exclusive jurisdiction over no-employment discrimination cases

These and other rules mean that there can be circumstances in which cases have to go to courts that might be better dealt with by the tribunal, and vice versa.

The detail of the proposals in the Consultation Paper are not considered here, though of great importance to specialist employment lawyers and other interested in employment matters.

But the existence of the consultation is flagged here to indicate yet more ways in which the detailed work of courts and tribunals is likely to be amended under the general banner of the Transformation programme.

(A similar exercise, though not currently the subject of a public consultation, is ongoing in the context of the resolution of housing and property disputes where  complex boundaries have to be negotiated between tribunals and courts which mean that cases may need to be launched in more than one forum. There is likely to be greater public debate on these issues when the promised Consultation Paper on a new Housing Court is published later in 2018.)

The Law Commission’s Consultation Paper can be seen at https://www.lawcom.gov.uk/consultation-launched-into-how-employment-law-disputes-are-decided/

The Consultation runs till January 2019. Final recommendations will be published in 2019.

 

 

 

Written by lwtmp

September 27, 2018 at 12:21 pm