Posts Tagged ‘civil justice’
Covid 19 and the English Legal System (13): Justice Committee reports on the impact on the Courts and on the Legal Profession
I have noted before that a number of Parliamentary Committees are examining aspects of the impact of Covid 19. The Justice Committee is in the middle of publishing a series of reports on this question. The first two of these, on Courts and on the Legal Profession have been published (30 July 2020 and 3 Aug 2020).
Both reports are, inevitably, in the nature of interim reports – given that we are still in the middle of a crisis, the outcome of which is far from clear.
The first report, on the Courts, takes up the widespread criticism that there were already considerable backlogs and unacceptable delays in the criminal justice system which have been exacerbated by the arrival of Covid 19.
The Committee notes that measures being put in place to improve the performance of the Crown Courts include a possible increase in the number of sitting days and the opening of the (temporary) Nightingale Courts – specially adapted spaces in which criminal trials can be dealt with.
As regards Magistrates’ Courts, the Committee found that the end of May 2020, there were 416,600 outstanding cases in the magistrates’ courts, which is the highest backlog in recent years. (The backlog previously peaked at 327,000 outstanding cases in 2015.) By mid-June, the figure was even higher. HMCTS has promised a ‘recovery plan’; the Committee states that it looks forward to seeing it.
By contrast with the criminal justice system, the civil, administrative and family systems have fared relatively better. Much of this has been the result of the ability of the courts and tribunals service to move hearings online. The Committee repeats concerns raised elsewhere, for example about enabling those who find it hard to use IT to participate, and that some types of family dispute are hard to deal with online.
The Committee stresses the importance of HMCTS undertaking proper evaluations of the impact of these new procedures on users of the system. It also emphasises that changes in practice arising out of the need to respond to the pandemic should not be adopted on a permanent basis, without more evaluation and consultation.
The Justice Committee report on the impact on the legal profession is not as general as its title might suggest. It focusses primarily on the impact on legal aid practitioners and other advice agencies, arguing that they continue to need financial support if the provision of services – particularly in criminal cases – is not to be lost.
The Committee’s report on the impact of Covid 19 on the Courts is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/519/51905.htm
Their report on the impact of the pandemic on the legal profession is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/520/52003.htm
Covid 19 and the English Legal System (11): Civil Justice – results of the Civil Justice Council rapid survey
As I have already noted here, Covid 19 has had a major impact on the ways in the courts are delivering their services. In particular, much attention has been directed towards the use of virtual or remote hearings – online paper hearings, hearings by phone and hearings by video.
The Civil Justice Council commissioned a rapid preliminary survey of how these new processes were working. The results of that survey were published in early June 2020. It was based on responses to a survey drawn from the experience of those involved in cases in a two-week period in early May 2020. The study was carried out by Dr Natalie Byrom of the Legal Education Foundation.
Obviously, such a survey can be no more than an initial glance at what is happening on the ground. Many of these preliminary findings are what might be expected:
- many judges and practitioners were finding that they were getting on better with using new technologies than they might have anticipated;
- they were coping despite a lack of advance training in the use of technologies;
- the technologies themselves were often not as reliable as participants would like;
- some types of hearing were more suited to remote hearings than others.
These are the sorts of issue that should be mitigated as all those involved in delivering new services become better trained and more used to dealing with cases using the new technologies.
From a rather detailed report, four important points for the way ahead may be noted:.
- At present HMCTS does not have an effective way of capturing information details about what types of case are brought to court. For example, data is published on the numbers of possession proceedings brought by mortgage companies or landlords against residential occupiers (mostly for failure to meet payment obligations). But it is impossible to get any detailed information about the use of courts for other potential housing law issues. The report makes a strong plea that much greater effort should be made by HMCTS to identify the ‘data points’ which would provide a much more detailed picture of how the civil court system is functioning. Effective planning of future services cannot be provided without more detailed management information.
- There was a strong impression that video hearings were better suited for remote hearings that telephone hearings.
- There were inevitable concerns that litigants in person might be in difficulty using the new technologies unless adequate support was available.
- The survey was unable to capture what lay users of the system, in particular litigants in person, thought of these new developments. It was essential to fill this knowledge gap if the objective of HMCTS’ reforms – to provide services that users want and need – was to be met.
The survey report and related press release can be accessed at https://www.judiciary.uk/announcements/civil-justice-council-report-on-the-impact-of-covid-19-on-civil-court-users-published/
Further information about the Legal Education Foundation is at https://www.thelegaleducationfoundation.org/
Transformation of the justice system: money claims online
In November 2018, HM Courts and Tribunals Service launched its money claim online service. On July 3 2020, it announced that a significant milestone had been reached in the use of this service, namely that, after 18 months, over 100,000 cases had gone through the new system.
The Government states:
The service aims to make it simpler and quicker for people to submit a claim, by allowing them to do so from their own home and removing complex legal language from the online application. Most people take less than 15 minutes to complete the initial claim form. Almost 9 in 10 people using the service have been satisfied or very satisfied with it, with claims now being issued in minutes, not days.
In many cases, this that means claims can be issued, responded to and settled without the need for third-party involvement.
See https://www.gov.uk/government/news/more-than-10000-civil-money-claims-issued-online
(The figure IS 100,000, not the 10,000 mentioned in the Press Release Heading!)
Covid 19 and the English Legal System (9): introduction of a common platform for remote hearings in criminal, civil and family cases
Moves towards doing more court and tribunal business via remote links, rather than by personal appearances in courtrooms, had begun even before the Covid 19 pandemic struck. Indeed, the use of virtual or remote courts and tribunals was a key element in the Transformation of the Justice system that was in progress before the virus arrived.
The pandemic has, however, sharply accelerated the expansion in the use of remote hearings.
The Government has been using the Cloud Video Platform (CVP). It was initially used in the criminal justice system across 60 crown courts and 93 magistrates’ courts. The technology has been used in some 3,600 crown court hearings and more than 7,000 overnight remand cases heard by magistrates. It was not used for cases involving jury trial.
The announcement of the first stage in the use of this technology is at https://www.gov.uk/government/news/new-tech-will-help-keep-the-criminal-justice-system-moving-during-covid-19-pandemic
On July 1, 2020, the Government announced that it had decided to expand the use of the CVP to over 120 civil and family courts.
The Press announcement states that: ‘CVP can be accessed by any device that has a camera and a microphone – such as a mobile phone or tablet. Anyone can join easily, and securely, through a web browser, and sessions can be locked to make sure only appropriate parties join. Training rooms can also be set up so that sessions may be rehearsed before they go live.’
Further details are at https://www.gov.uk/government/news/new-video-tech-to-increase-remote-hearings-in-civil-and-family-courts
Although the rapid roll-out of this platform has been driven by the challenges arising from Covid 19, I assume that, once in place, this technology will become part of the fabric of the justice system.
Looking ahead, the full potential of such technology to enable potential court users to access the courts more easily will need to be explored and be accompanied by a substantial public education programme.
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.
Transforming civil justice: current projects – progress reports
In the civil jurisdiction, existing processes can be protracted, inefficient and costly. The Government’s aim is to create a system that enables people to manage and resolve a dispute fairly and speedily.
- This will involve more mediation and fewer hearings.
- It will involve simpler processes and online routes into and through the courts – providing good quality digital systems to support the civil system, which at present is very paper-heavy, and allowing the kind of digital working in civil courts that legal professionals and others have become used to in the criminal court.
Initial focus is on those proceedings that most often engage the civil courts, in particular the county court – money claims and possession claims. In addition there is an important infrastructural programme to enable the High Court to function more efficiently. In a little more detail:
Next steps for ADR?
In October 2017, the Civil Justice Council published an important consultation paper on the future of ADR.
The paper noted:
The stage has been reached where in various categories of dispute in England and Wales (notably family and employment) the parties are actually required to take steps directed solely to exploring settlement. Nobody in these systems is required to settle, but they are required to commit time and often money to exploring the possibility.
The Courts and rule makers in the non‐family civil justice system in England and Wales have been less forceful. The encouragement of ADR is currently achieved by:(a) exhortations to try to settle and to use ADR in Court forms and documents;(b) links and signposts to sources of information about ADR(c) tick‐box requirements that clients have, for example, been advised of the need to settle if possible and of the availability at ADR(d) costs sanctions being imposed after judgment in the relatively rare cases in which one party can establish that his opponent has unreasonably refused or failed to mediate.(e) the Courts’ acknowledgement that litigation lawyers are now under a professional obligation to advise their clients of the availability and advantages of ADR.Almost all of these measures are well crafted and well thought out. But in our view the system as a whole is not working….
the Court should promote the use of ADR more actively at and around the allocation and directions stage. We think that the threat of costs sanctions at the end of the day is helpful but that the court should be more interventionist at an earlier stage when the decisions about ADR are actually being taken. We think there should be a presumption that in most cases if parties have not been able to settle a case by the directions stage they should be required to bring forward proposals for engaging in some form of ADR.
Some of us, a minority, would go further and introduce ADR either as a condition of access to the Court in the first place or later as a condition of progress beyond the Case Management Conference…
Overall we draw attention to the fundamental problem of the failure so far to makeADR familiar to the public and culturally normal. Meeting this wider challenge willultimately be more important than any tuning of the rules of civil procedure.
The Consultation runs until mid-December 2017. The Interim Paper is at https://www.judiciary.gov.uk/wp-content/uploads/2017/10/interim-report-future-role-of-adr-in-civil-justice-20171017.pdf
Changing the small claims track
In November 2015, the Government announced that it planned to increase the small claims limit for personal injuries to £5000. Following a consultation on making reforms to soft tissue injury claims (often referred to as whiplash injury) the Government has now (March 2017) decided that while Road Traffic Accident claims for less than £5000 should stay in the small claims track, the small claims limit for other personal injury claims should become £2000. It plans that these new limits should be in effect by October 2018.
The Government is also intending to ban the settlement of whiplash claims unless medical evidence is provided of the alleged injury.
For details see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/593431/part-1-response-to-reforming-soft-tissue-injury-claims.pdf
What’s in a name? ‘Business and Property Courts’
From June 2017, ‘The Business and Property Courts’ will be the new name for England and Wales’ international dispute resolution jurisdictions and will act as a single umbrella for business specialist courts across England and Wales.
This is rather more than a simple re-branding. The main objective of the new arrangements is that it will enable appropriately qualified judges to be deployed more flexibly so that their expertise can be used in whatever forum it is needed.
Business and Property Courts brings under a single umbrella the following existing courts and lists:
- The Commercial Court (covering all its existing subject areas of shipping, sale of goods, insurance and reinsurance etc.)
- The Admiralty Court.
- The Mercantile Court.
- The Technology and Construction Court (covering all its traditional areas of major technology and construction cases).
- The Financial List (covering banking and financial markets).
- The Companies and Insolvency Court.
- The Patents Court.
- The Intellectual Property and Enterprise Court (the “IPEC”).
- The Competition List.
Other courts and lists will be added in future to include the existing business and property cases in the Chancery Division.
There will also be Business and Property Courts in Birmingham, Manchester, Leeds, Bristol and in Cardiff, with expansions to Newcastle and Liverpool likely in the future.
Although the framework will be new, existing practices and procedures will be retained, at least for the time being.
The details are in https://www.judiciary.gov.uk/announcements/business-and-property-courts-media-release/
Transforming the Justice System: the Prisons and Courts Bill 2017
Enromous changes to the ways in which courts – both criminal and civil – and tribunals operate have already been foreshadowed in a number of policy documents published during 2016. Parts 2 to 4 of the Prisons and Courts Bill contain provisions that will give statutory authority to the changes that have been proposed.
The headline provisions may be set out as follows:
Part 2 creates new procedures in civil, family, tribunal and criminal matters.
It makes changes to court procedures in the Crown Court and magistrates’ courts to make processes and case management more efficient.
It allows some offenders charged with summary-only, non-imprisonable offences to be convicted and given standard penalties using a new online procedure.
It extends the use of live audio and video links, and ‘virtual’ hearings where no parties are present in the court room but attend by telephone or video conferencing facilities.
It makes provision which will apply across the civil, criminal and tribunal jurisdictions to ensure public participation in proceedings which are heard virtually (by the streaming of hearings), including the creation of new criminal offences to guard against abuse, for example by recording such stramed hearings.
It creates a new online procedure rules committee that will be able to create new online procedure rules in relation to the civil, tribunal and family jurisdictions.
It bans cross-examination of vulnerable witnesses – in particular those who have been the subject of domestic abuse – in certain family cases.
It confers the power to make procedure rules for employment tribunals and the Employment Appeal Tribunal on the Tribunal Procedure Committee and extends the membership of the Committee to include an employment law practitioner and judge or non-legal member.
Part 3 contains measures relating to the organisation and functions of courts and tribunals.
It extends the role of court and tribunal staff authorised to exercise judicial functions giving the relevant procedure rules committees the power to authorise functions in their respective jurisdictions.
It abolishes local justice areas, enabling magistrates to be appointed on a national basis, not just to a specific local justice area.
It replaces statutory declarations with statements of truth in certain traffic and air quality enforcement proceedings.
It makes reforms to the arrangements for the composition of employment tribunals and the Employment Appeal Tribunal.
It enables the High Court to make attachment of earnings orders for the recovery of money due under a judgment debt, as far as practicable, on the same basis as in the County Court.
Part 4 contains measures relating to the judiciary and the Judicial Appointments Commission.
It enables more flexible deployment of judges by enabling them to sit in different jurisdictions.
It brings the arrangements for the remuneration of judges and members of employment tribunals – currently undertaken by the Secretary of State for Employment – under the remit of the Lord Chancellor.
It rationlises the roles of judges in leadership positions who will support a reformed courts and tribunals system. (This includes provision to abolish the statutory post of Justice Clerk; this role will continue, but those qualified to be Clerks will also be able to undertake analogous work in other court/tribunal contexts.)
It gives the Judicial Appointments Commission the power to carry out more work (not directly related to judicials appointments) on a cost-recovery basis.
Source, Explanatory Notes to the Prisons and Courts Bill 2017, available at https://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0145/en/17145en02.htm
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 