Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘civil proceedings

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.
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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.

Reforming the Civil Justice system

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There have recently been two reports making proposals for reform of the civil justice system.
In the first, published in February 2015, a committee of the Civil Justice Council, chaired by Professor Richard Susskind made proposals for the development of online dispute resolution (ODR)

In summary the report calls for radical change in the way that the court system of England and Wales handles low value civil claims. We strongly advocate the introduction of online dispute resolution (ODR). The committee argued, in outline:

  • For low value claims, we are concerned that our current court system is too costly, too slow, and
    too complex, especially for litigants in person.
  • To overcome these problems, our main recommendation is that HM Courts & Tribunals Service
    should establish a new, Internet-based court service, known as HM Online Court (HMOC).
  • On HMOC, members of the Judiciary would decide cases on an online basis, interacting
    electronically with parties. Earlier resolution of disputes on HMOC would also be achieved –
    through the work of individuals we call ‘facilitators’.
  • We predict two major benefits would flow from HMOC – an increase in access to justice (a
    more affordable and user-friendly service) and substantial savings in the cost of the court system.
  • ODR is not science fiction. We present a series of case studies from around the world that clearly
    demonstrate its potential.
  • We argue that to improve access to justice, it is vital not just to have better methods of resolving
    disputes but also to have effective ways of avoiding and containing disputes. ODR can help here.
  • The technology underpinning ODR is evolving rapidly. We make a series of predictions about
    the likely capabilities of later generations of ODR system.
  • Our Group would be pleased to work closely with HMCTS in a new phase of work, that should
    focus on piloting the proposals in this report.

Their report is available at https://www.judiciary.gov.uk/reviews/online-dispute-resolution/odr-report-february-2015/

More recently JUSTICE has published an important report – Civil Justice in an Age of Austerity. A Committee, chaired by retired Court of Appeal Judge Sir Stanley Burnton, argues that the age of austerity should also be seen as ‘an age of opportunity’ to change the way the civil justice system operates.

It supports the proposals for ODR made by the Civil Justice Group (above) but goes further proposing that the courts take more responsibility for ‘triaging’ cases – with court officials playing a more proactive role in helping parties to disputes to resolve their problems themselves, leaving judges to deal with the most complex cases. It also argues for better information about legal rights and obligations.

The JUSTICE report is available at http://justice.org.uk/delivering-justice-in-an-age-of-austerity-report-launch/

Given the General Election, it will be some time before policy initiatives – if any – emerge from Government. But they show that there are influential figures in the legal system anxious to promote greater efficiency and a clearer user focus on the work of the courts.

 

Court fees: further changes

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In June 2014, new fees for taking civil proceedings were introduced, designed to bring in additional revenue to the Court Service/Ministry of Justice.
In January 2015, a further paper was published by the Ministry of Justice which announced further decisions relating to court fees, and which raised for consultation yet other suggestions for increasing court fees. These proposals are set against a background where the income which the initial changes had hoped to generate has not been realised.

The principal change is that the fee to issue proceedings for the recovery of money is raised to 5% of the value of the claim for all claims over £10,000, up to a maximum of £10,000. The fees for claims of less than £10,000, which represent over 90% of all money claims, will remain at their current levels. Discounts of 10% will apply to these fees where the claim is initiated electronically using the Secure Data Transfer facility or Money Claims Online.

The Government has decided not to implement the proposed increase to the fee for a divorce, or either of the options for charging higher fees for commercial proceedings.

The Government is now consulting on proposals

  • to raise the fee for a possession claim by £75.
  • to increase the fee for a general application in civil proceedings from £50 to £100 for an application without notice or by consent; and from£155 to £255 for an application on notice which is contested.

It is proposed that the latter proposal should be subject to an exemption for:

  • applications to vary or extend an injunction for protection from harassment or violence;
  • applications for a payment to be made from funds held in court; and
  • applications made in proceedings brought under the Insolvency Act 1986.

The consultation period is only 6 weeks. Final decisions will be announced in due course.

For full details see https://www.gov.uk/government/publications/enhanced-court-fees-the-government-response-to-part-2-of-the-consultation-on-reform-of-court-fees

Written by lwtmp

January 17, 2015 at 11:29 am