Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘civil justice

Transforming the Justice System: the Prisons and Courts Bill 2017

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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

Transforming the English Legal System: Civil Justice

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The Consultation Paper Transforming our Justice System sets out proposals for reform of the civil justice system that build on work undertaken earlier in 2016 by the Civil Justice Council, JUSTICE and Lord Justice Briggs – all of which have been noted in this blog.
The principal features of what is now proposed are:

 

i. Introducing a new online process for resolving claims: In line with plans across all jurisdictions, we will move more cases away from physical court rooms. Building on Lord Justice Briggs’ proposals in his Civil Court Structures Review we will create a new process to resolve many disputes entirely online, using innovative technology and specialist case officers to progress routine cases through the system and reserving judicial time for the most complex cases. We will create a new, streamlined Rules Committee to design this new system and keep the processes simple. When hearings are required, they may be held over thetelephone or video conference, focusing court resources on the most complex and difficult cases. This will mean that cases should reach a quicker resolution.

ii. Encouraging parties to resolve disputes themselves where possible: We will
increase signposting to mediation and alternative dispute resolution services to
help people avoid court for minor disputes that would be better handled privately,
without needing the court to intervene.
iii. Extending the fixed recoverable costs regime: Fixed recoverable costs are legal
costs which can be recovered from the losing side by the successful party to a
claim, at a prescribed rate. (For civil claims, these are set out in the Civil
Procedure Rules). We will build on measures introduced in the last Parliament for
low value personal injury claims, to limit the level of legal costs recoverable.
These measures provide transparency and certainty for all parties and are
designed to ensure that the amount of legal work done is proportionate to the
value of the claim. We are keen to extend the fixed recoverable costs regime to
as many civil cases as possible. The senior judiciary will be developing proposals
on which we will then consult.
iv. Civil enforcement: We will give the [county court] powers to issue attachment of
earnings orders to the High Court to create a simpler, more consistent approach
to enforcement, and make sure more people can get the money they are owed.
We will also commence the fixed deductions scheme (fixed table) provisions in
the Tribunals, Courts and Enforcement Act 2007 in the County Court and
introduce fixed tables in the High Court, providing transparency and certainty of
the rate of deductions from debtors’ earnings to pay back their creditors.
v. Replacing statutory declarations in county court proceedings with a witness
statement verified by a statement of truth: We will replace outdated and currently
inconsistent procedures, which are inconvenient for people to use and resource
intensive to administer, with a more modern digital approach but keeping strong
penalties where a statement of truth is found to be false.

See chapter 3 in https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf

Review of the structure of the civil courts

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The review of the structure of the civil courts, undertaken at great speed and efficiency by Lord Justice Briggs, was published on 27 July 2016.

Although commissioned by the Lord Chief Justice and the Master of the Rolls rather than by Government Ministers, there are strong reasons to believe that its recommendations will be taken forward by Government. The one uncertainty is how far the new Lord Chancellor and Secretary of Justice, Lynne Truss MP, will focus on an initiative originally supported by her predecessor, Michael Gove MP.

The recommendation that has grabbed most public attention so far relates to the recommendation for The Online Court. 

This would be a new court, designed to be used by people with minimum assistance from lawyers, with its own set of user-friendly rules. It is anticipated that it will eventually become the compulsory forum for resolving cases within its jurisdiction. It should start by  dealing with straightforward money claims valued at up to £25,000.

The review makes recommendations about how to help people who need assistance with online systems.

It is also provided that complex and important cases, even of low monetary value, should be able to be transferred upwards to higher courts.

Briggs also recommends important changes to who should be undertaking the work of the courts. Judicial resources should be made more readily available by the creation of Case Officers.

These would be a senior body of court lawyers and other officials who can assist with certain functions currently carried out by judges, such as paperwork and uncontentious matters. They would be trained and  supervised by judges. Their decisions would be subject to reconsideration by judges on request by a party. They would operate independently of government when exercising their functions.

Thirdly Briggs deals with the thorny problem of the Enforcement of Judgments and Orders.

He recommends that there should be a single court as the default court for the enforcement of the judgments and orders of all the civil courts (including the new Online Court). This should be the County Court, but there would need to be a permeable membrane allowing appropriate enforcement issues to be transferred to the High Court, and special provision for the enforcement of arbitration awards, in accordance with current practice and procedure.

He wants to see all enforcement procedures being digitised, centralised and rationalised.

Fourth, Briggs is keen to promote Mediation/ADR.

This has been on the agenda for years. In this context he recommends the re-establishment of a court-based out of hours private mediation service in County Court hearing centres prepared to participate, along the lines of the service which existed prior to the establishment and then termination of the National Mediation Helpline. My view is that all county court hearing centres should be required to offer this; but Briggs clearly felt this was a step too far at this stage.

Future issues

Briggs also sets out a number of proposals for further restructuring of the civil courts. These include:

  1. a review of High Court divisions;
  2. a single portal for the issue of all civil proceedings, leading to the eventual abolition of District Registries;
  3. a review of whether procedural changes in the Court of Appeal should be applied to appeals to the High Court and to Circuit Judges in the County Court;
  4. the possible convergence of Employment tribunals and the Employment Appeal tribunal with the county court;
  5. he would like to see the Family Court being given a shared jurisdiction (with the Chancery Division and the County Court) for dealing with Inheritance Act disputes and disputes  about the co-ownership of homes.

Announcements about the Government’s response to these recommendations and how they fit into the current programme of reform of the court estate will be noted here in due course.

Detail about the Briggs review can be found at https://www.judiciary.gov.uk/civil-courts-structure-review/civil-courts-structure-review-ccsr-final-report-published/civil-courts-structure-review-final-report-press-notice/

Housing disputes – court or tribunal? Civil Justice council review

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The Civil Justice Council has asked Judge Siobhan McGrath to take another look at the best ways for resolving housing disputes. This will follow up work done some years ago by the Law Commission. The Commission argued that a wider range of issues could go to what was then known as the Residential Tenancies Property Tribunal.

Since then there have been at least two relevant and significant developments. First, disputes relating to disputed tenancy deposits are mostly determined by alternative dispute resolution procedures created by the introduction of Tenancy deposit Protection.

Secondly, in Scotland there are proposals for establishing a specialist housing tribunal. (There is also a specialist Residential Tenancy Board in Ireland).

The outcome of the review is expected early in 2016.

For further information go to https://www.judiciary.gov.uk/related-offices-and-bodies/advisory-bodies/cjc/working-parties/working-group-on-property-disputes/

Written by lwtmp

September 29, 2015 at 3:06 pm

Protecting Intellectual property rights: the Intellectual Property Enterprise Court

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The UK economy depends heavily on innovation – in products, design, brands. All these key economic activities are underpinned by intellectual property rights. It is essential that those who create, research and design new things and ideas are able to protect the intellectual property they have created.

There is a lot of law which is designed to do just that. But the effect of the law is undermined if those who want to assert their intellectual property rights against those who want to deny them their rights cannot do so effectively.

Of course the traditional forum for the assertion of such rights is the Court. But as is well known, going to court is an extremely expensive business. Individuals and small and medium businesses may just not be able to afford to litigate, however meritorious their case and however unmeritorious their opponents might be.

Some years ago, a first attempt to make some forms of IP litigation more affordable was put in place with the introduction in 1990 of the Patents County Court (PCC). It had a ‘special jurisdiction’ to hear proceedings related to patents and registered designs, and the ‘ordinary jurisdiction’of a County Court to hear tortious actions, such as copyright infringement, trade mark infringement, and passing off claims (though initially not all IP matters, such as certain trade mark and designs issues),

But it never worked particularly effectively and did not attract much business.In particular, the PCC was perceived as featuring a number of major ‘procedural shortcomings’ which affected its ability to hear low value claims:

  • The PCC ‘lacked any mechanisms for controlling what parties filed in a case or for keeping cases moving’
  • The PCC lacked the ability to place limits on the value of a case brought before it.
  • From 1999 onwards, the Civil Procedure Rules applied equally to the PCC and the High Court.

The cumulative effect of these three shortcomings was that litigation could be under­taken at the PCC and the High Court with the same procedures and at the same price. This was perceived as blurring the lines between the types of cases heard at the PCC and the High Court which did little to encourage SMEs to enforce their IP rights at the court.

Further as noted above, the PCC was split between ‘special’ and ’ordinary’ jurisdictions. Among other things, this split restricted to some extent the types of remedies that were available in certain cases, such as asset freezing orders and orders for search and seizure.
From 2010, a programme of reform has been put in place, designed to make it easier in particular for SMEs to access the court. The principal changes have been:
  • Procedural change,with  the introduction of active case management (ACM), early identification of the issues by the judge,and a limit on the time to be taken at trial;
  • Cap on recoverable costs: set at £50,000;
  • Cap of £500,000 damages recoverable in cases before the PCC;
  • The introduction of a small claims track to hear copyright, trade marks and passing off, databases, breach of confidence, and unregistered designs matters, but not cases concerning patents, registered designs and plant variety rights.

Finally, in October 2013, the Intellectual Property Enterprise court (IPEC) was created as a specialist court operating within the Chancery Division of the High Court of England and Wales. In accordance with CPR part 63 and Practice Direction (PD) 63 the IPEC can hear cases concerning patents, designs (registered/unregistered, UK/Community), trade marks (UK/Community),passing off, copyright, database right, other rights conferred by the Copyright Designs and Patents Act 1988 and actions for breach of confidence. It took over the work of the Patents County Court, which was abolished.

A recent research report suggests that these changes – particular on the control of costs and the increase in case management – have been effective in encouraging more SMEs to bring cases to the IPEC and have also increased the willingness of parties to proceedings to negotiate settlements to their disputes.

The researchers found:

the cumulative effect of the IPEC reforms 2010-2013 has been highly significant – in addition to an increase in the numbers of filed cases at the IPEC, the creation of the streamlined IPEC MT and SCT for litigating disputes has led to an overall increase in the amount of IP disputes that occur more generally i.e. pre-filing. In other
words, now that IP holders have the ability to utilize the IPEC – a litigation forum that caps costs and damages, and makes use of ACM (and includes the SCT option) – IP holders are more confident about entering into disputes with potential infringers, where previously they would have not felt confident enough to do so.
The information in this blog item is derived from the evaluation report commissioned by the Intellectual Property Office, and written by Christian Helmers,Yassine Lefouili and Luke McDonagh. It was published on the England and Wales Judiciary website, and is downloadable at  https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/447710/Evaluation_of_the_Reforms_of_the_Intellectual_Property_Enterprise_Court_2010-2013.pdf
See also Angela Fox (2014): Intellectual Property Enterprise Court: Practice and Procedure, Sweet and Maxwell, London.

The specialist financial list of England and Wales: diagram – launch of website

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The following diagram can be seen at https://www.judiciary.gov.uk/you-and-the-judiciary/going-to-court/high-court/

It gives more information about how the recently announced specialist financial list will be structured within the High Court of England and Wales. Go to the website and click on each of the headings for more information.

The creation of this new list raises, in my mind, a more general question – should specialist facilities be available only for the rich litigating over large sums of money. Other areas are arguably worthy of similar treatment  – e.g. housing. Given the investment in new technologies it might also be argued that access to specialist judges would not necessarily need to be in specific court buildings; they could be asked to deal with cases on-line via video links, for example. This may be an issue for Lord Justice Briggs to consider

Written by lwtmp

August 1, 2015 at 1:38 pm

Court fees: new decisions; new consultation

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In purely commercial terms, the civil justice and tribunals system operates at a financial loss. Many argue that this is as it should be – the provision of courts and tribunals is a public service that should be financed generally by the state, not just by those who have to use the courts. But the former Coalition Government and the current Conservative Government do not share this view. They argue that users of court and tribunal services should pay more for them than they historically they have done. Despite recent increases in court fees, the Government states that the Courts and Tribunals Service costs £1 billion more than the income received through fees.

In January 2015, I noted here the decisions of the Government to introduce new court fees – decisions which, when they came into effect in April, resulted in a great deal of complaint from the legal profession. Those decisions were also accompanied by a consultation on other proposed changes to court fees.

This incremental approach to policy making – linking decisions and consultations – has now been used again. In July 2015, the newly elected Conservative Government reached its conclusions on the issues it consulted on in January 2015, and at the same time set out further proposals for fee changes on which views are sought – nicely timed for the holiday period when Ministers and civil servants are away, leaving holiday homework for those who have to respond to these documents!

The July 2015 document sets out the following principal decisions and issues.

Court fees – general

1. Following the January consultation, the Government has decided to increase the fees for issuing a possession claim in the county court by £75, from £280 to £355. The Government claims that the available evidence suggests that this increase will not deter anyone who would otherwise have taken their claim to court. it does not mention the ultimate impact this decision may have on the person against whom possession is being sought.
2. The Government has also decided to increase the fees for general applications in civil proceedings by £50, from £50 to
£100, for an application by consent and by £100, from £155 to £255, for a contested application. In order to ensure the most vulnerable are not affected, the Government has decided to exclude from this fee rise applications such as those to vary or extend an injunction for protection from harassment or violence.
Divorce fees
In December 2013, the Coalition Government also consulted on increasing the fee payable to issue divorce proceedings from £410 to £750. The Government has now announced that it will Increase the fees for issuing divorce proceedings to £550. The Government states:
We have carefully considered the concerns raised during the consultation and decided not to increase fees by 80% as originally proposed. Instead we will press ahead with a more affordable increase of about a third. We are also protecting the most vulnerable by ensuring that fee remission is available for those who need it, such as women in low wage households.
What is interesting to me is whether there are opportunities here to encourage parties to potential divorce proceedings to issue proceedings on-line. While some divorce proceedings are extremely complex, many are not. Should not the Government be developing a portal to enable divorce proceedings to be issues on-line, such as now happens in other parts of the civil justice system, e.g. for money claims and possession claims? Lower fees for issuing proceedings online would be expected.

It cannot be said that the three changes listed above are going to impact significantly on the £1bn shortfall; the Government’s own estimates are that the increased fees will only raise around £60 million.

Further proposals

It is worth remembering that in determining the balance between what users pay towards the overall cost of the court and tribunal service as compared with the financial burden that falls on the taxpayer. That is why, in the last Coalition Government,  section 180 of the Anti-social Behaviour Crime and Policing Act 2014 gave the government power to set fees at a level above the costs of proceedings to which they relate, i.e. in crude terms to make a surplus on certain types of proceedings which could be used to fund other types of process.

The Government has now set out further proposals relating to fees for proceedings.

First, it proposes an increase in the maximum fee for money claims from £10,000 to at least £20,000. Fees are currently payable on 5% of the value of a claim up to a maximum fee of £10,000. The proposal is therefore to double the maximum fee. The Government notes that this change will only affect the highest value claims, worth £200,000 or more. There are 1.2 million money claims each year, of which only 5,000 will be affected.That is just 0.4% of the total, or 1 in every 240 money claims. The Government argues, with some force, that many of the claims brought for higher values will involve large multi-national organisations or wealthy individuals. It therefore thinks it  right to ask them to contribute more. In order to protect
the most vulnerable, personal injury and clinical negligence claims will be excluded from this higher cap and fee remissions for those of limited means will continue to apply.
Second, the Government proposes to introduce or increase fees for certain tribunals. Thus fees in the Immigration and Asylum Chamber would, while applying exemptions to protect the most vulnerable.
The Government states it will not be applying any fees to the Social Entitlement Chamber of the First-tier Tribunal, where most applicants do not have the means to pay, or to the Mental Health Tribunal, which deals with especially vulnerable individuals.
However, it does want to introduce fees to the property, tax and general regulatory chambers. In the property tribunal, it proposes fees at low levels for the majority of applications, while setting higher fees for leasehold enfranchisement cases where there are often large sums of money at stake. In each of the Tribunals being consulted on, the Government says its aim is to recover 25% of the total cost of the service through fees with taxpayers footing the rest of the bill.
What is disappointing about these proposals is that there is no reference to the work done by the now defunct Adminitrative Justice and Tribunals Council, which suggested that discussion of income streams for providing the tribunals service should also include consideration of what financial contribution those government departments against whom decisions are being appealed should make, particularly in cases where the departmentd loses the appeal. The Council felt that the incentives on departments to get the decision right first time were not sufficiently strong.
The Consultation on these proposals runs until mid-September. It may be anticipated that consequent decisions will emerge around the end of the year.
Full details of the decisions and consultation proposals are in https://consult.justice.gov.uk/digital-communications/further-fees-proposal-consultation/supporting_documents/enhancedfeesresponseconsultationonfurtherfees.pdf.
Full lists of the new fees are in Annex B; lists of the proposed new fees are in Annex C.