Martin Partington: Spotlight on the Justice System

Well, after the long wait, the Solicitors Regulatory Authority has finally given the green light to the first three ABS offering legal services. They are listed at http://www.sra.org.uk/solicitors/freedom-in-practice/alt-bs/licensed-body-register.page which will be updated as new ABS come on-stream.

Further details about the best known of the three, Co-op Legal Service, is at http://www.co-operative.coop/legalservices/press-releases/Making-Legal-History/. Co-op Legal Services have made a clear statement of how they want to deliver legal services alongside the other professional services they offer, such as banking, pharmacy, and funeralcare. My hunch is that we will see a lot more from them over the coming months.

The other two authorised firms do not yet reveal the extent of their ambitions as ABS. At present they look more like traditional high street practices. LawBridge is a firm based in Sidcup, Kent. Details about them can be found at http://www.lawbridgesolicitors.com/AboutUs.aspx. Their website states that they want to use new technologies to cut down overheads, while continuing to offer a good service to clients. The third company is John Welch and Stammers, a firm of solicitors based in Witney Oxon. They have a website at http://www.johnwelchandstammers.co.uk/default.asp. At present this gives little clue as to how being an ABS will change the way they work.

The demise of the Administrative Justice and Tribunals Council (AJTC) has been sought by the Government for some time. It is one of the bodies destined for abolition in the ‘bonfire of the quangos’ – which has been the subject of a number of comments in the blog. But the AJTC has strong supporters, particularly in the House of Lords. And before the final rites are completed – the making of an order under the Public Bodies Act 2011 – the House of Commons Public Administration Select Committee decided to take one final look at the arguments for and against abolition.
Their report, published on 8 March 2012, regards the arguments used by Government in favour of abolition as pretty thin. As their press release notes: “The Committee found that the Government’s rationale for winding up the AJTC was questionable, and that the Ministry of Justice may not have either the resources or the expertise to take on its functions.” It also thought the claimed financial savings were unlikely to materialise.
The Committee also noted that the Government itself had proposed “to establish a “group of administrative justice experts and key stakeholders—particularly those who represent the views of users” to “provide a valuable forum for sharing information and best practice, and […] to test policy ideas”. We understand that this user group is likely to include some former members of the AJTC.” The Committee recommends that the Government provide further information on its proposals for the membership and operation of this group of experts and key stakeholders.
To me this looks to have the potential for the creation of a new body with arguably some of the AJTC functions. Perhaps the main difference will be that members of the new body will not be paid!
In my view the extent of the terrain of administrative justice is so great that sensible and coherent policy of benefit to the citizen simply cannot be developed in one Government department without support from across government and input from researchers able to view what is going on in other countries.
To read the report of the Select Committee, go to http://www.publications.parliament.uk/pa/cm201012/cmselect/cmpubadm/1621/162102.htm

NB I should declare an interest; I was appointed specialist adviser to the Committee for this report.

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 Government has published its response to the Norgrove report on reforms needed to the Family Justice system.
The response is, broadly, to accept Norgrove’s recommendations. The Press release states that the main focus will be on the following matters:

1. Speeding up care and adoption cases by reforming the public law system and increasing transparency. The Government has already begun to publish data on. It will introduce legislation at the earliest opportunity to enable a six month time limit to be set and wherever possible it expects cases to be completed more quickly, while retaining the flexibility to extend complex cases where this is genuinely in the children’s interest.

2. Simplifying the family justice system to help separating couples reach lasting agreement speedily, if possible without going to court. The Government will make it mandatory for separating parents who propose court action to resolve a dispute about their child to have an initial assessment to see if mediation is something which would be suitable instead, to help them agree on the arrangements for their child. The Government estimates that it will spend an extra £10m a year on legal aid for family mediation taking the total to £25m per year (although it has placed no upper limit on this figure). It will also examine how to give the courts more robust enforcement tools to combat failure to comply with judgments.

3. A  new family justice board will be established to drive culture change and better cross-system.It will be accountable to ministers, made up of senior figures representing the key organisations who play a role within the system and who will have a clear remit to improve performance.

On the most contentious issue, whether there should be a statutory presumption in favour of shared parenting, the Government appears to have accepted that this specific idea, advocated by a number of people, should not be pursued. However, the Government has decided that it should not leave the current law as it is. Its response, again as reported in the press release is:

• The changes in education and the introduction of parenting agreements which the review recommended will help ensure better recognition of the joint role of parents within wider society.
• The Government also accepts the need to clarify and restore public confidence that the courts recognise the joint nature of parenting. It will therefore make a legislative statement emphasising the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests. The government is mindful of the lessons which must be learnt from the Australian experience of legislating in this area, which were highlighted by the Review and led them to urge caution. The Government will therefore consider very carefully how legislation can be framed to ensure that a meaningful relationship is not about equal division of time, but the quality of parenting received by the child.

Given that the current role of the court is to ensure that the interests of thye child are paramount, it is not entirely clear what the ‘legislative statement’ will be able to achieve. However, no doubt further announcements will be made in due course.

The press release can be found at http://www.justice.gov.uk/news/press-releases/moj/pressrelease060212a.htm.

The full government response can be seen at https://www.education.gov.uk/publications/eOrderingDownload/CM-8273.pdf

What is happening in the legal services market? As we enter this period of major change, it may be helpful to have some base data against which future developments may be measured. I have been looking at the webpages of the Legal Education and Training Review.
With their permission I have extracted the following information (together with references to the sources):

• The UK legal services sector employs nearly 350,000 people
• Legal services contribute 1.8% of Britain’s GDP
• Between 2000 and 2010 invisible exports by law firms have tripled in value to £2.9bn
• In 2009/10 there were 117,862 solicitors and 15,270 barristers in practice, together with some 22,000 trainee and practising legal executives in England and Wales
• In 2009/10 women made up 45.9% of solicitors with practising certificates (and about a fifth of the partners at the ‘top 100′ law firms)
• In 2009/10 women constituted 34.4% of the Bar (including 11% of Queen’s Counsel)
• 11.1% of solicitors and 10.1% of barristers in practice are from black and minority ethnic groups
• In 2010 1.7% of firms employed 41.6% of solicitors in private practice
• There were 4,874 new training contracts registered in 2009/10, a decrease of 16% on the previous year.
• In the same year 11,370 full time and 3,140 part-time Legal Practice Course places were available.
• 460 ‘First Six’ pupillages were registered in 2009/10, a decrease of 0.6%; 1,432 students had passed the Bar Professional Training Course in 2008/09
• 13,433 students graduated with Qualifying Law Degrees in the summer of 2009
• Over half (56.6%) of the QLD graduates in 2009 received first or upper second class degrees.
• ILEX has 19,176 members
• 73% of ILEX members are female
• In 2009 there were 29,211 applicants to study for a first degree in law in England and Wales; slightly over two-thirds of these were accepted.

Sources:

Office of National Statistics

Bar Barometer: Trends in the Profile of the Bar, (General Council of the Bar/Bar Standards Board, March 2011)

Institute of Legal Executives

Trends in the Solicitors’ Profession: Annual Statistical Report 2010, (The Law Society, 2010).

Those starting out on the study of law need to reflect on the implications of this information. In particular the gap between the numbers of training contracts and pupillages available and the numbers reaching the stage when they can qualify for a training contract/pupillage.

One of the reasons why I emphasise the ‘holistic’ approach to thinking about Law and the Legal System in my book is that students who want to use their studies in some practical context need to think beyond the traditional professional boundaries of solicitor and barrister.

For further information about the Legal Education and Training Review see http://letr.org.uk/

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

Just before Christmas 2011, the Government published a Consultation Paper proposing that those wanting to use the Employment Tribunal should be required to pay a fee to do so; at present access is free.

The Government argues that it has to reduce the £84 million cost currently borne by the taxpayer. Fees are an obvious way to do this. At the same time, it is suggested that fees may deter some people from using Employment Tribunals, thereby reducing the case load, which has expanded rapidly in recent years.

The consultation  puts forward two options for consideration:

• Option 1: an initial fee of between £150-£250 for a claimant to begin a claim, with an additional fee of between £250-£1250 if the claim goes to a hearing, with no limit to the maximum award; or
• Option 2: a single fee of between £200-£600 – but this would limit the maximum award to £30,000 – with the option of an additional fee of £1,750 for those who seek awards above this amount.

In both options the tribunal would be given the power to order the unsuccessful party to reimburse fees paid by the successful party.

The Government, consistently with its policy in the civil justice arena of encouraging out of court settlement, states that it will continue to fund the cost of  the Conciliation Service ACAS, which helps people in employment disputes reach agreement without the need for legal proceedings, and is free to users.

The Government also argues that introducing fees will bring employment tribunals into line with civil courts where claimants already pay a fee to use the service. The paper states that, just like in civil courts, the Government will also continue to fund a system of fee waivers for those who cannot afford to pay.

Although many may think that these proposals are sensible, they mark another step in the development of the tribunal system, which until recently has been more or less free to users. There have been recent moves to introduce fees in immigration and asylum hearings. The development in relation to employment tribunals could lead to similar moves in other contexts as well, for example land and property disputes or tax disputes that are dealt with by tribunals.

My view is that, while politically it may make sense for each of these initiatives to occur individually, there should be a much more open discussion about the implications of a general policy to make tribunals more like courts through the incremental imposition of fees. A discussion of this broad principle should not be allowed to go by default.

The present consultation runs until March 2012; the Government has announced that no change is likely before 2013/14.

To read the Consultation, go to http://www.justice.gov.uk/consultations/et-fee-charging-regime-cp22-2011.htm