Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘civil litigation

Post-implementation review of LASPO Part 2: the Jackson Reforms

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I have noted elsewhere the fact that the Government has started a post-implementation review of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). (See this blog, March 2018 and September 2018).

The principal focus is on changes to the legal aid scheme – Part 1 of the Act.

Part 2 of the Act introduced changes to the costs rules relating to civil litigation proposed in the review led by Lord Justice Jackson.

Progress with this review has been slower than with the legal aid review. But in June 2018, the Government published a short statement on how it thought the changes were going, and set out a number of questions on which it sought evidence from practitioners and other civil justice stakeholders.

The focus of the inquiry is on the five principal reforms contained in the Act. They are

  • (i) non-recoverability of Conditional Fee Agreement success fees;
  • (ii) non-recoverability of After the Event insurance premiums,
  • (iii) the introduction of Damages-Based Agreements,
  • (iv) section 55 changes to Part 36 offers to settle proceedings,
  • (v) banning referral fees in personal injury cases.

The preliminary view of officials is that while their introduction was very contoversial, they are working pretty well in practice.

In June 2018, the Government has published an initial assessment together with a list of questions to which it hopes practitioners will respond during the summer of 2018. A further report will be published in due course.

The document is available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/719140/pir-part-2-laspo-initial-assessment.pdf

 

 

 

 

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Written by lwtmp

September 15, 2018 at 3:29 pm

What’s in a name? ‘Business and Property Courts’

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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/

Written by lwtmp

March 29, 2017 at 12:26 pm

Dealing with whiplash injuries: the Prisons and Courts Bill 2017

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For some time the Government (under pressure from the Insurance industry) has been concerned about the numbers of claims and the aggregate amount of those claims for minor injuries arising from Road Traffic Accidents.

Between November 2016 and January 2017 the Government consulted on a package of measures to tackle the continuing high number and cost of whiplash claims and their impact on motor insurance premiums.

The Government’s  concern was that the volume of road traffic accident related personal injury claims has remained static over the last three years and is over fifty per cent higher than 10 years ago (460,000 claims registered in 2005/06 28 compared with 770,000 in 2015/16) despite a reduction in the number of road traffic accidents reported to the police and improvements in vehicle safety, for example better head restraints.

It was noted that similar improvements in vehicle safety in other jurisdictions have led to a reduction in both the number of claims and motor insurance premiums.

The Government’s view is that the continuing high number of low value claims increases the cost of motor insurance premiums, paid by motorists in England and Wales.  The Government has set out its view that the level of compensation paid to claimants for these claims is also out of proportion to the level of injury suffered. It has therefore decided to  introduce measures to disincentivise minor, exaggerated and fraudulent claims.

Part 5 addresses this matter.

Clause 62 enables the Lord Chancellor to specify in regulations, in the form of a tariff, the damages that a court may award for pain, suffering and loss of amenity (“PSLA”) for relevant whiplash injuries sustained in road traffic accidents,  in those cases where the duration of the injury does not exceed or is not expected to exceed two years. The tariff will provide for an ascending scale of fixed sum payments with the relevant tariff for a particular case identified by reference to the severity of the injury. Regulations may specify different sums for different descriptions of injury.

There will be  power to deviate from the tariff in exceptional circumstances.

Clause 64  bans regulated persons (basically solicitors and barristers, legal executives and alternative business structures) from making or accepting a payment in settlement, or inviting, or offering to settle an RTA related whiplash claim without appropriate medical evidence.

Whether these changes will actually lead to any reduction in insurance costs is currently hard to determine, particularly given other recently announced changes that may result in a general increase in awards of damages for personal injury.

Written by lwtmp

March 8, 2017 at 12:12 pm

Review of fixed recoverable costs

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One of the central recommendations of Lord Justice Jackson’s 2010 Review of civil litigation procedures and costs was greater use of fixed recoverable fees. The principle of fixed costs had been advanced by the Civil Justice Council for a number of years; indeed they helped to negotiate an agreement that this was the way forward for certain low vale Road Accident claims. Jackson wanted to go further and apply the principle of fixed costs to a wider range of types of case and to cases of higher value. He has continued to advocate the need for many more cases to come within the fixed costs regime – in his view, cases up to £250,000.

Now the senior judiciary (The Lord Chief Justice and the Master of the Rolls) have commissioned Lord Justice Jackson to undertake a further exercise to test the practicability and wisdom of his ideas. His review has been given the following terms of reference:

 

  • To develop proposals for extending the present civil fixed recoverable costs regime in England and Wales so as to make the costs of going to court more certain, transparent and proportionate for litigants.
  • To consider the types and areas of litigation in which such costs should be extended, and the value of claims to which such a regime should apply.
  • To report to the Lord Chief Justice and the Master of the Rolls by the 31st July 2017

It seems highly likely that this exercise will lead to an extension of the existing fixed costs regime.

For details of the announcement see https://www.judiciary.gov.uk/announcements/senior-judiciary-announces-review-of-fixed-recoverable-costs/

 

Written by lwtmp

November 23, 2016 at 10:15 am

Damages based agreements: proposals for reform

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One of the most innovative recommendations from Sir Rupert Jackson’s proposals for the reform of costs of civil litigation was that a new regime of ‘damages based agreements’ (DBAs) should be introduced. Known as Contingency Fees Agreements in other jurisdictions, they – in theory – enable a law firm to take on a case, on the basis that if the case is won, the firm can take a percentage of the damages awarded to cover the costs and fees of bringing the action. The intention was that DBAs would be an alternative to Conditional Fee Arrangements – which have been around for some years now.
Although introduced in 2013, they have not taken off as had been hoped. DBAs were subject to special regulations – the Damages-Based Agreements Regulations 2013, SI 2013/609. These regulations have had a chilling effect which has deterred litigators from using them as Jackson had intended.
The Ministry of Justice has drafted proposals for amending the regulations. It was also agreed that the Civil Justice Council should take a specialist look both at the draft revised regs and wider policy issues.
Its report on both these matters was published at the beginning of September 2015.
It seems likely that a version of the revised draft regulations will be brought into effect later in 2015, which should clear up some of the issues which have worried litigators.
But the wider policy issues seem unlikely to be addressed in the short term. The likely impact on civil litigation practice is thus currently very hard to determine.

For the CJC report see https://www.judiciary.gov.uk/announcements/damages-based-agreements-dbas-publication-of-cjc-recommendations/
For a professional commentary on the report see http://blogs.lexisnexis.co.uk/dr/revisions-to-damages-based-agreements-for-civil-litigators/

Written by lwtmp

September 29, 2015 at 2:57 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