Archive for the ‘Chapter 9’ Category
Unbundled legal services
The concept of unbundling legal services is still relatively new, but has already been the subject of an important research paper from the Legal Services Board, published in September 2015.
Unbundling is where a package of legal services is separated into parts and the work shared between the consumer and lawyer. An example of unbundling is a consumer preparing the evidence and the court bundle themselves and then directly instructing the barrister who represents the consumer at the court hearing.
The Press release on the research states:
This research paints a picture of law firms beginning to respond to consumer demand and changes in their commercial environment by developing affordable alternatives to full-service representation. It suggests that:
– reduced cost and the opportunity to exercise greater control over the case were the primary reasons why those consumers interviewed chose to unbundle
– unbundling tended to be identified as an option during the initial interview between a consumer and their legal advisor rather than being actively marketed to potential clients. As a result, while some consumers are making savings on their legal bills, this development is not benefiting large numbers of people who are currently put off approaching lawyers in the first place due to cost concerns
– no regulatory barriers to unbundling were identified, but some concerns were raised around assessing consumer capability, giving advice based on limited information and ensuring there is clarity on agreements about the scope of work, and
– members of the judiciary felt that if full representation could not be obtained then, as a starting point, some legal advice and assistance ought to be beneficial. They also echoed some potential difficulties with unbundling identified by providers and felt it important that advice and assistance is given by regulated advisers.
There is a clear indication that the Legal Services Board would like to see unbundling develop further.
The Co-operative Legal Services is an example of a legal service provider who do make clear in their advertising that they are offering unbundled legal services, leaving the clients to choose which parts of the service they wish to pay for. (Of course clients can also go for a full legal service.)
For further details on the research go to http://www.legalservicesboard.org.uk/news_publications/LSB_news/PDF/2015/20150916_LSB_Publishes_Report_Into_The_Unbundling_Of_Legal_Services.html
For Co-operative Legal Services go to https://www.co-oplegalservices.co.uk/
Training the Judges – developing the work of the Judicial College
In December 2012 I published a podcast with Lady Justice Hallett on the work of the Judicial College in training the judiciary. Her role was taken over by Lady Justice Rafferty in August 2014.
The work of the College has continued to develop although with reduced resources.
It still provides core induction training for all new judges – different courses depending on the type of judge concerned – criminal, civil, administrative.
But its most notable innovation has been the creation of an extensive prospectus of courses to which sitting judges may sign up. (They have to undertake a minimum amount of compulsory professional development wach year). The scope of the programme is considerable and includes a number of academic seminars bringing together judges and legal scholars. The bulk of the programme focusses on practical matters arising in different subject areas.
Information about the work of the Judicial College can be found at https://www.judiciary.gov.uk/about-the-judiciary/training-support/judicial-college/
The current prospectus (valid until March 2015) can be accessed by clicking on the link on that page.
The Equal Treatment Bench Book, published by the College is also available on-line. See https://www.judiciary.gov.uk/publications/equal-treatment-bench-book/
Judicial Diversity statistics 2015
Getting membership of the judiciary more reflective of the population as a whole is a challenge that the Judicial Appointments Commission has been grappling with for many years. The latest statistics, published at the end of July 2015, suggest that some progress is being made – more with women than with those from the black and ethnic minority communities.
The headline figures from the latest statistical report show:
- Eight out of 38 Court of Appeal judges are women (21 per cent). In April 2014 the number was seven (18 per cent)
- The number of High Court judges who are women remains at 21 out of 106, (now 108), (19 per cent)
- The number of female Circuit Judges increased from 131 in April 2014 to 146 in April 2015 (going from 20 per cent to 23 per cent)
- More than half (53 per cent) of the 60 court judges under 40 years of age are women.
- In tribunals, 56 per cent of the 89 judges under 40 are women
- The overall percentage of female judges has increased in both the Courts and Tribunals from April 2014 to April 2015 from 24.5% to 25.2% in the Courts and 43.0% to 43.8% in the Tribunals
- The percentage of Black and Minority Ethnic (BME) judges across Courts and Tribunals is unchanged at 7 per cent
- 12 per cent of judges across Courts and Tribunals under 50 years of age are from a BME background
- 36 per cent of Courts judges were not barristers by professional background (down from 37 per cent). In Tribunals the figure is 67 per cent (down less than one per cent).
For further information see https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/diversity/judicial-diversity-statistics-2015/
Litigation (crowd) funding – a new approach
Litigation funding is normally associated with high value commercial cases. Litigation funders provide the financial resources for high cost litigation and commercial arbitration on the basis that they will receive a return on their investment – often a percentage of damages recovered or agreed. Litigation funders will not take on personal injury cases or consumer cases because the damages involved are (usually) too low
But an article in the Sunday Times 21 June 2015 caught my attention. Under the headline Man, 87, sues care home for right to kiss his wife it was reported that an 87 year old man was seeking to establish a right to kiss his wife, who lives in a care home suffering from dementia.
At the end of the article it was stated that the man’s lawyers were working pro bono but also they were seeking to raise £4000 for legal fees through a new company called CrowdJustice.
Launched on 25 May 2015, CrowdJustice seeks to raise modest sums – up to £5000 – to help defray costs in cases which the company thinks have some social importance, such as the treatment of the elderly and vulnerable or have a wider community impact.
An example of the latter is the case being brought by a Colombian man, Gilberto Torres, who is fighting a legal case before the UK High Court in order to end the impunity of British oil companies’ actions abroad. He claims that
Me and my family have had our lives destroyed because I tried to take a stand when I saw human rights and environmental abuses being committed to protect the interests of BP in Colombia, where I worked as an engineer. I was kidnapped and tortured in retribution, and now we’ve been forced to leave Colombia and live in exile. Help us get our lives back, and help expose in court the human rights violations committed by fossil fuel companies abroad.
At the moment, CrowdJustice is taking cases on an invitation-only basis. But it inviting those who think they may have a case that affects their community to get in touch.
The website states:
When someone has a court case that they feel passionate about and that affects others in their community, they can set up a Case Page on CrowdJustice that explains what the case is about and why they need help funding it. That person – the Case Owner – sets a deadline and funding target of the amount they need to raise to help offset the costs of taking their case forward. It’s up to you to support them, help spread the word and make pledges to help them meet the funding target.
Only when the funding target is met do the pledges get collected and backers’ cards get charged. If the funding target is not met, the pledges made do not get collected.
When a case is successfully funded, a Case Owner will keep in touch and update backers about the latest developments in a case.
Unlike litigation funding, those who invest in these community cases will not usually see any return on their investment (unless they have pledged more than £1000, where they may receive a percentage of the sum pledged back). Any surplus at the end of a case is paid to the Access to Justice Foundation.
This is an innovative approach to the challenge of enabling access to justice in cases of potential social importance. For more details go to https://www.crowdjustice.co.uk/
For more details on the very different work of commercial litigation funders go to the home page of the Association of Litigation Funders of England and Wales at http://associationoflitigationfunders.com/.
This site gives links to the member companies who are offering litigation funding in commercial cases.
Legal Aid – Exceptional Cases Funding – recent developments
Following enactment of the Legal Aid Sentencing and Punishment of Offenders Act 2012,(LASPO) the scope of civil legal aid was significantly reduced. Civil legal services could only be funded under the new legal aid scheme which fell within statutorily prescribed classes of case. (See LASPO section 9 and schedule 1).
However, section 10 of the Act did provide that, in exceptional circumstances, civil legal services could be provided where
(a) … it is necessary to make the services available to the individual … because failure to do so would be a breach of –
(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or
(b) … it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.
The Director of Case Work has the statutory responsibility for making such decisions. In reality, the decisions are taken by case workers working within the Legal Aid Agency.
In coming to their decisions, case workers are required to take into account Guidance issued by the Lord Chancellor. (LASPO section 4.)
The Lord Chancellor was clearly anxious that, unless he was careful, the existence of exceptional funding might create a means for getting round the limitations he sought to impose on the Legal Aid scheme, which would have the effect of undermining the Government’s desire to reduce public expenditure on legal aid. Thus, in his guidance on exceptional case funding, which was published in 2013, it was stressed that, in reaching their decisions, case workers should understand that this funding ‘is to be used for rare cases’ only; ‘limited resources’ should be focussed ‘on the highest priority cases’. In relation to cases that might involve breach of Article 6 of the ECHR (right to a fair trial) the guidance stated: The overarching question to consider is whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings. This is a very high threshold” (original emphasis).
Shortly before Christmas 2014, the Court of Appeal handed down its decision in the case of Gudanaviciene . The case actually involved 6 cases which had been brought together because they raised in essence the same question – was the Lord Chancellor’s Guidance lawful? It was argued, in effect, that the terms in which the guidance had been drafted imposed too high a threshold on applicants for exceptional funding, and that therefore the guidance went beyond the words of the Act, and were in consequence unlawful.
The Court of Appeal agreed with this argument. In the course of a long judgement, they held, in part, that
The fact that section 10 is headed “exceptional cases” and that it provides for an “exceptional case determination” says nothing about whether there are likely to be few or many such determinations. Exceptionality is not a test. The criteria for deciding whether an ECF determination should or may be made are set out in section 10(3) by reference to the requirements of the Convention and the Charter. In our view, there is nothing in the language of section 10(3) to suggest that exceptional case determinations will only rarely be made.
They therefore concluded that the Lord Chancellor’s Guidance was unlawful.
The question for Government was: how to respond to this judgement? There were two options: take a further appeal to the Supreme Court; or reissue the guidance and hope that the revised guidance would comply with the Court of Appeal’s interpretation of LASPO.
In the event, the Government decided on the latter course. On 9th June 2015, the Lord Chancellor published revised guidance on how exceptional case funding decisions are to be made in future. While those who drafted the revised guidance are still concerned that the provision of exceptional case funding should be kept under controi, the ‘tone’ of the document seems to have softened. Indeed the emphasis, for case workers taking decisions on these matters is whether – as the Act says, the provision of such funding is necessary.
The recent election of the new Conservative Government has clearly scotched any lingering hopes in the legal profession that there would be any major softening of policy on civil legal aid. But the revised guidance on exceptional case funding for civil legal services does represent a change in emphasis which practitioners must note and apply.
To read the judgement of the Court of Appeal in the Gudanaviciene case go to https://www.judiciary.gov.uk/wp-content/uploads/2014/12/gudanavicience-ors-v-dir-of-legal-aid.pdf
To read the revised guidance on emergency case funding (non-inquest) go to https://www.gov.uk/government/publications/legal-aid-exceptional-case-funding-form-and-guidance. This page also gives a link to the guidance relating to inquest cases.
What is happening to Legal Aid? Reports from the Legal Aid Agency June 2015
Publication of the second Annual Report of the Legal Aid Agency might be thought to be an opportunity to find out in a bit more detail about what is happening to Legal Aid, following implementation of the Legal Aid Sentencing and Punishment of Offenders Act 2012. Those expecting such information will be very disappointed. The bulk of the Annual Report details how various business targets have or have not been met during the year under review. The report is thus about administrative and operational outcomes, rather than giving a view of how citizens are (or are not) being assisted by legal aid.
The Annual Report appeared on the same day as a much shorter summary by the Director of Legal Aid of issues that had come up during the same reporting year. This is also very general in tone – though it does mention a couple of cases that went to the Court of Appeal – and is more about the process of dealing with cases than anything else.
All the details on the current operation of the legal aid scheme is now put into quarterly statistical reports. The next is due at the end of June 2015. I will report on these in due course. But I very much regret that the reporting strategy of the former Legal Services Commission – which used to run legal aid – which included the key statistical headlines and provided a commentary on how the scheme was working for the public has not been continued.
To see the 2nd Annual Report go to https://www.gov.uk/government/publications/legal-aid-agency-annual-report-and-accounts-2014-to-2015
The Director of Legal Aid Case Work’s Report is at https://www.gov.uk/government/publications/director-of-legal-aid-casework-annual-report-2014-to-2015
What is happening to legal aid: podcast with Ruth Wayte
Ruth Wayte is the principal legal adviser with the Legal Aid Agency. In this podcast she reflects on the changes that have been taking place to the legal aid scheme. She acknowledges that legal aid practitioners have experienced significant cuts in the fees they receive for the work they do. But she also notes that there are still practitioners seeking contracts for work from the legal aid agency. Most applications to tender for work are well subscribed. She also comments on a number of the legal issues that have arisen in the courts, arising out of changes to the legal aid scheme.
You can hear her remarks at:
http://global.oup.com/uk/orc/law/els/partington14_15/student/podcasts/RuthWayte.mp3
Online Dispute Resolution – proposals from the Civil Justice Council
The Civil Justice Council has just published an important report on the potential for the use of new processes to deal with disputes in small value claims, under £25,000.
In summarey, the report states:
‘Our principal recommendation is that HM Courts & Tribunals Service (HMCTS) should establish a new, Internet-based court service, known as HM Online Court (HMOC). We recommend that HMOC should be a three-tier service.
- Tier One of HMOC should provide Online Evaluation. This facility will help users with a grievance to classify and categorize their problem, to be aware of their rights and obligations, and to understand the options and remedies available to them.
- Tier Two of HMOC should provide Online Facilitation. To bring a dispute to a speedy, fair conclusion without the involvement of judges, this service will provide online facilitators. Communicating via the Internet, these individuals will review papers and statements and help parties through mediation and negotiation. They will be supported where necessary, by telephone conferencing facilities. Additionally, there will be some automated negotiation, which are systems that help parties resolve their differences without the intervention of human experts.
- Tier Three of HMOC should provide Online Judges – full-time and part-time members of the Judiciary who will decide suitable cases or parts of cases on an online basis, largely on the basis of papers submitted to them electronically as part of a structured process of online pleading. This process will again be supported, where necessary, by telephone conferencing facilities.
2.5
The establishment of HMOC will require two major innovations in the justice system of England and Wales. The first is that some judges should be trained and authorized to decide some cases (or aspects of some cases) on an online basis. The second innovation is that the state should formally fund and make available some online facilitation and online evaluation services.
To ensure the implementation of our principal recommendation, we propose three supporting recommendations:
• that HMCTS introduces an ODR stream into its current programme for the reform of civil, family, and tribunal work, and allocates a modest fraction of its £75 million annual reform budget (over five years) for the establishment of HMOC;
• that all political parties offer in-principle support for HMOC, as a viable way of increasing access to justice and reducing the cost of the resolution of civil disputes; and
• that the Civil Justice Council invites the ODR Advisory Group to commence a new phase of work, collaborating with HMCTS and the Judiciary in formally piloting ODR, designing HMOC, and raising awareness of this new approach to the handling of civil disputes.
Although our terms of reference are restricted to civil claims under the value of £25,000, we believe that that the jurisdiction of HMOC should also be extended to suitable family disputes and to appropriate cases that come before today’s tribunals.’
It seems to me that developments on these lines are inevitable, for two particular reasons:
First, there are already in existence in the UK a number of dispute resolution procedures that are efficient and very cost effective using modern IT. Examples mentioned in the report include the Financial Services Ombudsman scheme, the Traffic Penalty Tribunal scheme, and Resolver.co.uk. However the majority of live examples are currently operating abroad. It is a pity that other similar procedures already operating in UK are not mentioned – for example the tenancy dispost dispute resolution schemes, all of which operate online and are free to appellants. (I am Chair of the Board of one of the companies offering this service.)
Second, the EU is in the final stages of ensuring that new forms of consumer ADR and ODR will be in place in member countries in the near future.
However, I also think more work needs to be done on considering the sources of the resources needed for running the service. Will this all come from the state? from users? from insurance companies needing to get disputes resolved? from industry bodies?
It also needs to be asked who the adjudicators should be. The report talks about members of the judiciary. But large numbers of disputes do not involve complex questions of law – they depend on the finding of facts based on evidence provided. It is not self evident to me that the only people capable of reaching sensible conclusions are judges. Indeed the existing schemes demonstrate that this is not the case.
Further development will be noted here as they occur.
Meantime, the CJC report is available at http://www.judiciary.gov.uk/reviews/online-dispute-resolution/odr-report-february-2015/
New financial penalties for claims management companies
At the end of December 2014, the Government introduced a new scheme for the imposition of financial penalties on claims management companies (CMC) that fail to adhere to the regulations that control this sector of the legal services market. Made under provisions in the Financial Services (Banking Reform) Act 2013, from 29 December 2014, the imposition of a financial penalty becomes an additional available enforcement sanction for use against non-compliant authorised persons under the following circumstances:
• As a consequence of a failure to comply with the Conduct of Authorised Persons Rules
• As a consequence of a failure to comply with requirements regarding the provision of
information or documents to the Regulator
• As a consequence of a failure to comply with a requirement to take out a policy of
professional indemnity insurance
• As a result of the Regulator being obstructed in its execution of a warrant to enter and search
premises for the purposes of investigating a complaint about the activities of a regulated
CMC, or assessing the regulated CMC’s compliance with the conditions of its authorisation
• As a result of the Regulator being obstructed from attempting to take possession of, or copies
of written or electronic records found when executing a warrant to enter and search premises.
It should be noted that these penalties are not imposed by a court but by the regulator of CMCs. The guidance states:
“In practice under the CMR Unit’s revised Enforcement Policy, a financial penalty is likely to be
considered where:
– Breaches have continued despite previous compliance advice or warnings
– Detriment caused to consumers or third parties in general can be clearly monetised
– Any financial gain or loss avoided by the business can be monetised
– The business has sufficient financial means to pay a penalty
– No previous formal enforcement action has been imposed
– Action to vary, suspend or cancel the authorisation of a business would be disproportionate
under the circumstances
This list is non-exhaustive but sets out some relevant indicators that are likely to be considered when
deciding whether to initiate the penalty calculation process or move to consider the other formal
enforcement sanctions.”
Full details of the scheme are set out at https://www.gov.uk//government/publications/claims-management-companies-financial-penalties-guidance
In addition it should be noted that from January 2015, the Legal Ombudsman will have power to deal with complaints about bad practice by CMCs.
Regulating Claims Management Companies
The process of driving Claims Management Companies that fail to adhere to the rules regulating their activities out of business seems to be having some success. The Government announced in February 2014 that in the previous year the authorisation of over 200 companies had been revoked. It was also announced that over 500 companies had gone out of business since referral fees were banned in 2013.
From April 2014, CMCs will have to pay higher fees to help cover the cost of regulatory activity.
For further information, go to https://www.gov.uk/government/news/clampdown-on-rogue-claims-firms
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 