Martin Partington: Spotlight on the Justice System

In a speech delivered in February 2010 Lord Bach referred to two sources of public information on law and rights which should be noted: first, http://www.direct.gov.uk/en/Governmentcitizensandrights/index.htm; and second, http://www.direct.gov.uk/en/CrimeJusticeAndTheLaw/index.htm which are useful official starting points for information on rights and criminal justice. For Lord Bach’s speech, see: http://www.justice.gov.uk/news/speech170210a.htm.

The review of the costs of taking civil proceedings – undertaken by Lord Justice Jackson – was published in January 2010.  I obviously need to comment on it here, since it considers an issue of fundamental importance to the English Legal System. But it is a long document which it is extremely hard to summarize.

The background – as discussed in Chapter 8 of the book – is that while many of Lord Woolf’s reforms to the civil justice system appear to have worked well, he did not secure a hoped-for reduction in the costs of going to court. As a consequence it is suggested that ‘access to justice’ – which was what Woolf was hoping to promote – may actually have been reduced. There is evidence that costs of litigation have risen because of the emphasis, in Woolf, of earlier disclosure of the issues in disputes required by the procedural protocols.

Any attempt to reduce costs face significant challenges. First, Treasury policy on court fees – that the Court Service should be broadly self-financing – has led to significant increases in court fees. Although there is some research evidence that court fees are not as significant deterrent to litigants as might be expected (Moorhead, 2007, What’s costs got to do with it? Available at http://www.justice.gov.uk/publications/research280607.htm) common sense suggests that the higher the fee, the more likely will litigants be deterred.

Second, lawyers want their work to be fairly (if not generously) rewarded. The bottom line is that if law firms make losses, they go out of business. Jackson found, however, that in many situations – particularly where the sums of money in dispute were relatively small – that costs charged by law firms had become disproportionate to the amounts in dispute.

Jackson also accepted, however, that a number of existing rules on costs – particularly relating to the indemnity principle (that the loser pays the winners costs) – were also a deterrent. He recommended that the indemnity rule be abandoned.

Jackson was convinced that, to achieve proportionality between what was at stake and the costs of arguing about what was at stake, there should be much greater reliance on the use of fixed costs in the fast track. In categories of litigation where it was not possible to set fixed costs, there should be a cap set as to the amount of costs that would have to be paid. A new Costs Council should be established to review these and related costs issues.

Jackson also wanted to see greater use of ‘before the event’ legal expenses insurance; abandonment of conditional fee agreements and the introduction of contingency fees (accompanied by a general uplift of around 10% in the awards of damages for personal injury).

In some areas – notably housing – Jackson adopted Lord Woolf’s view that any reform of costs had to be linked to reform of the underpinning law.

More generally, there should be greater emphasis on the use of different forms of alternative dispute resolution.

Implementation of these recommendation implies further changes in the culture of litigation which the Woolf reforms began. They will obviously take time.

As first steps, the government  announced a consultation on costs in defamation cases.  On 3 March 2010 the government stated that success fees under CFAs in defamation cases would be limited to 10%.

On 17 March 2010, the Judicial Executive Board announced the creation of a Judicial Steering Group to take implementation of Jackson forward. (see http://www.judiciary.gov.uk/about_judiciary/cost-review/index.htm).

I will keep you posted on developments as they emerge.

The Government has just launched a consultation on whether the upper age limit for jurors (currently 70) should be raised. It is argued that with people living longer and more healthy lives this might be something older people would like to do. I must say this seems a good idea to me. To have your say go to http://consultations.cjsonline.gov.uk/Default.aspx?conid=2 where you can submit your view direct, on line. The Consultation runs till mid June 2010

The death of people who are in the custody of the state always raises questions about how they were being treated, and whether more could have been done to prevent the death. A Ministerial group used to consider cases of suicide by those in custody but these arrangements were the subject of criticism in 2008. In later 2008, a new Ministerial Council on deaths in custody was established. It is advised by an Independent Advisory Panel (IAP) on Deaths in Custody. Chaired by Lord Toby Harris, the IAP will help to shape government policy in  this  area through the provision of independent advice and expertise to the  Ministerial Board on Deaths in Custody.  The remit of the Council covers deaths, which occur in prisons, in or following police custody, immigration detention, the deaths of residents of approved premises and the deaths of those detained under the Mental Health Act (MHA) in hospital. The principles and lessons learned as part of this work will also apply to the deaths of those detained under the Mental Capacity Act in hospital.

This is not a part of the justice system that is widely known about or understood. The IAP has recently launched a new website which makes available to a wider audience reports and other information about policy and practice in this important aspect of the way detainees are treated in custody. For further information, see http://iapdeathsincustody.independent.gov.uk/

The Government has announced a fundamental review of the family justice system. It is to have the following guiding principles:

1. The interests of the child should be paramount
2. The court’s role should be focused on protecting the vulnerable from abuse, victimisation and exploitation
3. Individuals should have the right information and support to enable them to take responsibility for the consequences of relationship breakdown
4. Mediation and similar support should be used as far as possible
5. Processes should be easy to understand, simple and efficient
6. Conflict between individuals should be minimised as far as possible

Against this background, the review will examine:

1. The extent to which the adversarial nature of the court system is able to promote solutions
2. The options for introducing more inquisitorial elements into the family justice system
3. Whether there are areas of family work which could be dealt with more simply and effectively administrative, rather than court-based process
4. The roles fulfilled by all of the different agencies and professionals in the family justice system

What is omitted from this preliminary list is the question whether there should be a separately identifiable family court to replace the current mix of magistrates’ courts, county courts and high court. It is expected that the outcome of the review will be published in about 18 months time.

For further details about the review, including details of the membership of the panel are at http://www.justice.gov.uk/news/newsrelease160210a.htm

It is very hard to get any understanding of what the Lisbon treaty seeks to do from reading or listening to reports in the UK media.

There is a useful website which gives more information in a relatively digestible form at  http://europa.eu/lisbon_treaty/glance/index_en.htm.

Before you make up you mind whether the changes effected by the Lisbon Treaty are good or bad, it is worth finding out what the Treaty actually says.

The final steps in the implementation of the Lisbon Treaty have been reached with the appointment of Belgian Prime Minister  Herman van Rompuy as President of the European Council, and the British Baroness (Cathy) Ashton as High Representative for Foreign Affairs and Security Policy. She will chair the meetings of the Foreign Affairs Council. She will also hold the post of Vice-President of the European Commission.

In addition, and less publicized, French Pierre de Boissieu, the current Deputy Secretary General of the Council of the EU, will become its Secretary General.

The Queen’s speech, delivered on 18 November 2009, has been widely hailed as the starting point for the General Election campaign – to be held in 2010.

There are two measures of particular interest to those following developments in the justice system and the machinery of government. First the Constitutional Reform and Governance Bill – which started its parliamentary process in the 2008-9 session – will continue to make progress in the coming session. This Bill contains a complex collection of measures of a rather technical nature, such as ‘putting the Civil Service on a statutory footing’ and giving new responsibilities to Parliament regards the ratification of treaties – both activities which are at present outside direct Parliamentary control.

In addition a draft House of Lords Reform Bill will be introduced; this will clearly not become an Act before the General Election. Its eventual fate, after the election, is currently impossible to predict – though it is more than likely that House of Lords reform will remain an item of unfinished business for some time to come.

Two Bills which received Royal Assent on 12 November 2009 are relevant to the procedures for introducing law reform measures recommended by the Law Commission.

First, the Perpetuities and Accumulations Act 2009 implements a Law Commission report published in 1999! It deals with a highly complex and detailed set of rules designed to prevent property being tied up for ever (with the risk that it becomes less economically useful than it might be). From our point of view, what is interesting about the Bill was that it used an experimental procedure designed to ensure that ‘non-controversial’ Law Commission Bills got through the Parliamentary process more quickly. These had been agreed by the Law Commission and Government in 2006.

What the Bill demonstrated is that even technical ‘non-controversial’ measures can quite easily become controversial.

In addition, the Law Commission Act 2009 also received Royal Assent. This requires the Lord Chancellor to report to Parliament annually on the progress of Law Commission reports and should ensure that its recommendations do not simply get lost in the government machine as does currently happen.

Public attention on events in Parliament has recently been focussed on the Queen’s Speech and what legislation Parliament may be considering between now and the 2010 General Election. But this may leave some wondering: what happened to the measures that were being considered by Parliament during the last Parliamentary session which ended in November 2009.

Royal Assent – the final formal stage in the legislative process – was given to 13 Bills, which then became Acts of Parliament. The full list is set out at http://news.parliament.uk/2009/11/royal-assent-12-november-2009/.

During the whole of the 2008-9 Parliamentary session, a total of 24 Bills were enacted. Thus over 50% were passed in the final rush.