Archive for the ‘Chapter 8’ Category
Courts and Tribunals (Judiciary and Functions of Staff) Act 2018
In June 2018, I noted the arrived of the Courts and Tribunals (Judiciary and Functions of Staff) Bill. It has now completed its Parliamentary process and became law at the end of 2018.
The aims of the legislation remain unchanged. The Act contains measures that are essential to enabling the judiciary to respond to the changing demands of a reformed courts and tribunals system and delivering better services to users.
The Act also introduces much greater flexibility to the deployment of judges. It also frees up judges’ time to focus on more complex matters by allowing suitably qualified and experienced court and tribunal staff to be authorised to handle uncontroversial, straightforward matters under judicial supervision.
The measures in the Act will also increase the efficiency of the courts and tribunals.
For further details see https://www.gov.uk/government/publications/courts-and-tribunals-judiciary-and-functions-of-staff-bill
Transformation: Courts and Tribunals, 2022: HMCTS and MoJ respond to the Public Accounts Committee
I noted in 2018 the critical report from the National Audit Office (see this blog June 2018) and the subsequent report (which I labelled ‘brutal’) from the Public Accounts Committee (see this blog October 2018) on the courts and tribunals transformation programme.
Well, now the Ministry of Justice and HM Courts and Tribunals Service have come back with a series of replies, setting out the progress that has been made with the transformation programme, and setting out targets for the following 6 months.
Between November 2018 and February 2019, MoJ and HMCTS published no fewer than 6 reports, each one responding individually to the six principal criticisms made by the Public Accounts Committee.
The most fundamental question is whether the timeframe for the delivery of the transformation programme is being adhered to. The report on Recommendation 1 – which deals with this question – acknowledges that parts of the programme have not yet been started while listing a substantial body of completed work.
Other responses deal with:
- the impact of the transformation programme on users;
- engagement with stakeholders;
- the financial implications of the transformation programme on the wider justice system;
- evaluating the impact of the reform programme on access to justice and the fairness of the justice system; and
- balancing the portfolio of change projects to ensure that there is some flexibility and an ability to respond to financial pressures.
Interestingly, less than a month after the publication of the latest of these reports a Press Release in March stated that at least some aspects of the Transformation programme will not be completed until 2023. (See https://www.lawgazette.co.uk/news/breaking-hmcts-delays-1bn-courts-reform-by-a-year/5069501.article)
There is a lot of detail in the reports. They can be found by going to https://www.gov.uk/government/news/response-to-public-accounts-committee-transforming-courts-and-tribunals
This links to each of the six individual responses.
In January 2019, the Justice Select Committee announced that it too would be conducting an inquiry into the Courts and Tribunals Reform programme. See https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/court-and-tribunals-reform-inquiry-17-19/
It is right that such a major reform programme should be carefully scrutinised by MPs. They can help to ensure that the transformation, that I think is needed, is delivered.
Post-implementation review of Legal Aid, Sentencing and Punishment of Offenders Act 2012, Part 2 (The ‘Jackson’ reforms on costs)
Part 2 of LASPO introduced changes recommended by Lord Justice Jackson on the rules relating to the costs of civil litigation. The Post-Implementation Review (PIR) report, also published in February 2019, covers the following five changes made by the Act:
- non-recoverability of conditional fee agreement (CFA) success fees;
- non-recoverability of after the event insurance (ATE) premiums;
- the introduction of Damages-Based Agreements (DBAs);
- section 55 changes to Part 36 offers; and
- banning referral fees in personal injury (PI) cases.
These changes came into effect in April 2013. Other changes – dealing with different issues, and which came into effect at different times – were not within the scope of the PIR
According to the PIR review, the changes had five objectives:
- reducing the costs of civil litigation (Objective 1);
- rebalancing costs liabilities between claimants and defendants (Objective 2);
- promoting access to justice at proportionate cost (Objective 3);
- encouraging early settlement (Objective 4); and
- reducing unmeritorious claims (Objective 5).
The review drew on evidence presented to the review team by a range of stakeholders involved in civil litigation. Data were also subject to empirical analysis by Professors Fenn and Rickman – two researchers with a long track record of empirical analysis of court and process data.
The overall conclusion of the Review was that, in general, the objectives of the legislation had been met.
There was concern that the regulations relating to Damages Based Agreements were not as clear as they might be; the Government will consider whether to amend them in due course.
The Review did not consider other reforms made by Lord Justice Jackson, in particular relating to much greater use of fixed recoverable costs. The Report states that the Government is not currently minded to introduce these further changes.
Practitioners had expressed the view, during review, that a period of regulatory stability would be welcome. It seems that the Government has largely accepted this.
The Press Release and Report can be accessed at https://www.gov.uk/government/publications/post-implementation-review-of-part-2-of-laspo
Civil Liability Act 2018
The Civil Liability Act 2018 makes significant changes to the personal injury compensation system. In outline, it has three principal objectives.
First, it changes the rules relating to claims for injury for whiplash (which arise when someone drives into the back of your car). Measures in the Act will:
- provide for a tariff of compensation for pain, suffering and loss of amenity for whiplash claims. The final tariff will be set in supporting regulations via the affirmative procedure following Royal Assent.
- enable the court, subject to regulations, to increase the compensation awarded under the tariff
- introduce a ban on seeking or offering to settle, whiplash claims without appropriate medical evidence
The purpose of these changes is to try to reduce the cost of motor insurance for motorists in general by reducing the numbers and amounts of such claims.
Second, it makes changes to the way in which what is called the Personal Injury Discount Rate is set. The new rules will
- retain the 100% compensation principle which has long been a central part of the law, but modernise the calculation of the discount rate so that it reflects the reality of how claimants actually invest money. This provides a fairer and better way to set the rate for both parties
- put the process of setting the rate on a statutory footing, with expert independent advice and a requirement for the Lord Chancellor to set it at least every 5 years, giving clarity and assurance to claimants and to those underwriting costs. The regular setting of the rate will ensure vulnerable people suffering life-changing accidents have their compensation adjusted by an up to date rate
- create an independent expert panel, which the Lord Chancellor will be required, from the second review under the new legislation, to consult in relation to the factors he or she may consider in setting the rate. This will bring a wider range of expertise into the process
Thirdly. the Act requires insurers to provide information to the Financial Conduct Authority so that the government can assess whether they have passed on savings as a result of the Act to their customers.
What goes on in the Commercial Court?
It used to be the case that the work of the Commercial Court and the Admiralty Court (now constituent parts of the Business and Property Courts of England and Wales) was the subject of an Annual Report. But there has been no such report for a number of years.
The lead judge of the Court, Mr Justice Teare, has now decided that the practice of providing Annual Reports should be revived. In February 2019, the first of the new series of reports, covering the year April 2017-March 2018, was published.
Although the number of cases coming before both the Commercial and Admiralty Courts is not that high, the value of these cases are often substantial. And a high percentage of the cases involve issues which have arising outside the UK. This reflects the fact that London is seen in many jurisdictions as the place where commercial disputes can and should be resolved – in turn reflecting the expertise of the major law firms based in London.
The report is available at https://www.judiciary.uk/wp-content/uploads/2019/02/6.5310_Commercial-Courts-Annual-Report_v3.pdf
Understanding Courts – a report from JUSTICE
In January 2019, the Human Rights Group JUSTICE published the report, Understanding Courts. It was the work of a group chaired by Sir Nicholas Blake.
The central message of the report – which builds on other reports published over the last few years by JUSTICE – is that going to court can be a confusing, intimidating and disempowering experience for lay people, whether as parties, witnesses or jurors. This is only compounded for people who are unrepresented, and for otherwise vulnerable people.
This report argues that, in the context of the current programme of reform of courts and tribunals, lay people should be put at the heart of court processes. The objective is to encourage meaningful access to justice through effective participation.
There are 41 recommendations in the report which focus on what effective participation should mean in practice. In broad outline, the key issues are that
- lay people should be informed about what will happen at their hearing through advance information provided by multiple means;
- court professionals should recognise that lay people should be their primary focus and adapt their approach accordingly;
- case management should ensure that lay people understand processes and assists with that understanding;
- legal jargon and confusing modes of address should be avoided, using plain English alternatives;
- there needs to be a change in professional culture that can otherwise exclude lay people;
- there should be appropriate adaptations to enable participation by children and those with a disability; and
- there should be support for all users who need it.
It is an interesting report, which deserves to be taken seriously. But I have the specific comments to make.
1 Tribunals have long espoused the key principles set out in this report. There is mention in this report that the user focus of tribunals needs to be brought into the court system. If this report has the effect of stopping (court) judges regarding tribunals as second class courts, rather than as first class dispute resolution forums, then it will have served a useful purpose.
2 There are many recommendations in the reports about ensuring that information provided by courts is user-friendly and up to date. This again is welcome but this is a message that has been developed on many occasions over recent years. Now is the time to get down to the hard work of developing user-friendly information and forms that really do enable individuals to improve their access to justice – using the potential of IT to the full.
3 If the change of culture recommended in the report is to be fully realise this has a significant implication for the training, not just of the judiciary, but also of court staff and other legal professionals. The recent spate of press stories about bullying judges is extremely worrying – it is hard to see how a bullying judge would have the empathy or patience to adopt the approach outlined in this report. Judges already in post will need as much training in the interpersonal skills required to change court culture as those coming new to the role.
The full report is available at https://justice.org.uk/our-work/areas-of-work/what-is-a-trial/
Resolving Housing Disputes: proposal for a Housing Complaints Resolution Service
The last two blog items have considered proposals for making the disputes resolution activities of the county court and the property tribunal in relation to housing matters work more coherently. But for many people, the very idea of going to a court (or tribunal) is daunting.
Increasingly, governments use non-court avenues for redress, where this can be done cost-effectively and in a way which promotes access to justice – in the broad sense of access to a service that will take an independent look at a dispute and resolve it. The outstanding example is in the field of financial services, where the Financial Services Ombudsman offers a dispute resolution service across the financial services sector.
In relation to housing disputes, the problem is rather different. There are a number of different complaints handlers – so many, in fact, that members of the public often don’t know which route to resolution to take.
The Government has been concerned about this issue for sometime. In January 2019, the Secretary of State announced that he would be bringing forward legislation to create a single Housing Complaints Resolution Service which will become the single port of entry – for both owner occupiers and renters – with disputes they wish to have resolved.
From broken boilers to cracks in the wall, the new Housing Complaints Resolution Service will potentially help millions by providing a straight-forward way of getting help when faced with unresolved disputes about problems with their home – such as repairs and maintenance.
One feature of the new service is that all Private Landlords – who currently do not have to belong to a redress scheme – will be required to sign up – with penalties for failure to do so.
In addition the government has announced that there will be a New Homes Ombudsman, to resolve complaints about the condition of new homes.
These changes will not happen overnight – they will require legislation. The details of the Housing Complaints Resolution Service will be developed with a new Redress Reform Working Group made up of representatives from across the sector, working with industry and consumers.
I will keep an eye on these developments as the details emerge.
For further detail, including links to background papers see https://www.gov.uk/government/news/james-brokenshire-announces-overhaul-of-broken-housing-complaints-system
Considering the case for a specialist housing court
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/
Dealing with housing disputes: proposals from the Civil Justice Council
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)
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.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 