Martin Partington: Spotlight on the Justice System

The Parliamentary Voting System and Constituencies Bill, which is designed to enable a referendum on Alternative Voting to be held in May 2011 – and to reduce the number of seats in the House of Commons from 650 to 600 – has been held up in the House of Lords for the last few weeks. It looks as though a deal has been done to enable the Committee Stage of the Bill to be completed by 2 February, which it turn opens the way for the Bill to be passed by the middle of February – essential if the referendum is to be held in May.
However, Labour peers continue to hint that there may still be further delays. My own guess is that it will get through – but watch this space!

The Government has just published the first Annual Report giving details of its responses to Law Commission reports. These are made under the Law Commissions Act 2009.

Having been a Law Commissioner I am particularly interested in those reports for which I was responsible. At least 2 – Publication of Local Authority Reports and Housing: Proportionate Dispute Resolution – are not mentioned at all. And a key feature of our work on Housing – that the law affecting all landlords, whether private or public sector, should be unified – is also wholly ignored.

There are an awful lot of other reports which are still in the pending trays in Government. Perhaps it is understandable that at the beginning of a new Parliament with a new Government wanting to deliver lots of new initiatives, detailed matters of law reform are lower on the political agenda.

This will need careful scrutiny to see whether the Law Commission’s impact is what it should be – given the resources devoted to its work.

The report is available at http://www.justice.gov.uk/publications/report-law-commission-proposals-jan-2011.htm

Welcome to 2011 – the year when many of the policies outlined by the Coalition Government start to take shape. Among developments to watch will be:
1 Impact of the Legal Services Act 2007 on shaping the legal profession and how they deliver legal services;
2 Sentencing policy – will the plans outlined by the Lord Chancellor survive political pressures within the Government?
3 Legal aid – what will remain of legal aid, particularly civil legal aid and how will legal services to the poor actually be delivered?
I will try to keep you up to date in the blog.
Meantime, have a very happy New Year!

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

On Tuesday 16 November the Faculty of Laws at University College London launched a new Judicial Institute. The opening event  was a panel discussion on ‘The Future of Judging’. At a time when the judiciary is at an important crossroads, this event explored the changing roles of judges and the challenges facing the modern judiciary as a result of developments in politics and society, science and technology, law, litigation and globalisation.

This is an extremely important research initiative that should throw considerable light on a part of the legal system that has not hitherto been the subject of a great deal of empirical research.

At present, an individual pays a fee when they apply for leave to enter or remain in the United Kingdom. There is currently no fee for any appeal against a decision to refuse leave. The Coalition Government is  seeking views on proposals to introduce a fee for the majority of individuals who wish to bring an appeal against:

• a decision to refuse them leave to enter the UK;
• leave to remain in the UK; or
• permission to vary their current leave to remain in the UK.

There is no intention that an individual who is bringing an appeal against a decision refusing to grant them asylum and who is in receipt of asylum support or who qualifies for Legal Aid will  pay a fee.

The Consultation Paper summarises the proposals as follows:
The Lord Chancellor has the power, under section 42(1)(c) of the Tribunals, Courts and Enforcement Act 2007, to introduce fees in both the First-tier Tribunal Immigration and Asylum Chamber (FTTIAC) and Upper Tribunal Immigration and Asylum Chamber (UTIAC). The underlying policy of recovering costs through introducing fees is therefore not in question in this consultation. However, the Government believes that there is a sound policy reason to introduce fee charges at the initial level, and that with the proposed exclusions, this will ensure that access to justice is properly available.

In more detail: there are proposals to charge a higher fee for oral hearings (when the relevant parties attend a hearing with a judge) than paper hearings (when a judge considers the merits of an appeal based on papers submitted to him or her) as the costs of an oral hearing are more than those of a paper hearing;

Appeals from individuals who are facing action initiated by the State (e.g. deportation; revocation of indefinite leave to remain; or deprivation of citizenship) will not have a fee charged;

Overseas appellants should generally be liable to pay a fee;

There should be a special power, to be used at the discretion of the Lord Chancellor, to waive fees in exceptional or compelling circumstances;

Payment of the fee can be made by someone other than the person bringing the appeal;

There sh0uld be no refund of the fee if an appeal is successful, withdrawn, invalid or out of time (as the Tribunal incurs costs in processing the appeal irrespective of the outcome);

Charging a two stage fee for some appeals to the Upper Tribunal;

Moving to a system where all appeals will be lodged at the Tribunal in the UK, with payment made shortly after the time the appeal is lodged;

All individuals bringing an appeal (unless exempt), including dependents and children, must pay a fee.

It is not suggested that the fee should cover all the cost of the tribunal – but it is likely to be set at a percentage of the cost of the average case, perhaps 25%. The Consultation period on these proposals runs until 21  Jan 2011

The significance of these proposals – which have not been widely publicised – should not be underestimated. It seems quite possible that consideration will be given to charging fees in other tribunal contexts – Employment Tribunals would seem a possible candidate.

The consultation may be found at

http://www.justice.gov.uk/consultations/docs/tribs-fees-consultation-paper-cp10-10a.pdf

In addition to the Consultation Paper on changes to legal aid, the Coalition Government has also published a consultation on changes to the system of costs in civil litigation, which take forward some of the proposals made by Lord Justice Jackson in his review of Civil Litigation costs published in January 2010.

Again the proposals in the Consultation are quite hard to summarise. The following is adapted from the MoJ Press release:

The central objective is “to reduce the spiralling costs payable by people who have been sued in ‘no win no fee’ cases. Defendants are currently liable for substantial additional costs while the claimant has no interest in restraining legal costs when deciding to bring a case. The consultation proposes that the claimant should have a financial interest in controlling costs incurred on their behalf, which would also lead to lawyers having to keep costs down in order to compete for business.”

In order to achieve this objective:

• “The key proposal is to abolish recoverability of success fees and associated costs in no win no fee conditional fee agreements. Under the current regime, defendants must pay these additional costs (which can be substantial) if they lose. The proposal would mean that claimants (emphasis added) have to pay their lawyer’s success fee and will therefore take an interest in controlling the costs being incurred on their behalf.

• “It is also proposed to allow damages-based agreements (also known as contingency fees) in litigation before the courts. These are another form of no win no fee agreement, under which lawyers can take a proportion of the claimants’ damages in fees.  This would increase the funding options available to claimants.

• “The consultation also seeks views on some of Lord Justice Jackson’s other recommendations, which are designed to balance the impact of these major changes, in particular to assist claimants. These recommendations include a 10% increase in general damages, and introducing a mechanism to protect the vast majority of personal injury claimants from paying a winning defendant’s costs (through qualified one way costs shifting).

• “Other proposals would further encourage parties to make and accept reasonable offers, as well as introducing a new test to ensure that overall costs are proportionate.  It is also proposed to increase the costs which can be recovered by people who win their cases without representation by lawyers.”

As with the Consultation Paper on legal aid, these proposals will be subject to a great deal of scrutiny, particularly by the legal profession. Their arguments may, as with legal aid reform, lead to changes in Government thinking. However, there is a good deal of consensus that the costs of civil litigation do need reform.

One of the issues not mentioned directly in the Press Release is the extent to which there should be greater promotion of ‘before the event’ insurance to cover potential costs in legal cases. Reductions in publicly funded legal aid may to an extent be replaced by increases in private funding. The problem with this outcome is that the very poorest cannot afford such insurance.

The Consultation Paper is at http://www.justice.gov.uk/consultations/jackson-review-151110.htm

The consultation is open until 14 February 2011.