Posts Tagged ‘online dispute resolution’
Whiplash reform programme: implementation
Way back in March 2019 I noted the enactment of the Civil Liability Act 2018. One of its principal objectives was to introduce a new way of dealing with claims for ‘whiplash injuries’ suffered when a car is hit from behind, causing those in the front car to suffer whiplash. It had been planned that the new scheme would come into operation in April 2020. The Government has now announced that it will commence on 31 May 2021.
The Whiplash Reform Programme provides, among other things that:
- A fixed tariff of compensation will determine the personal injury damages claimants will receive for whiplash injuries. Until now, most whiplash claims are determined by negotiation rather than by a ruling from a judge. The tariff – set by the Lord Chancellor – will in future decide the issue. The levels of compensation will be reviewed by officials every three years.
- There will be a ban on settling whiplash claims without medical evidence. It was argued that, in the past, insurance companies paid out on small claims which had been made without any supporting medical evidence because it was not financially worth their while to resist them. The effect of paying out on unmeritorious claims was to increase the costs of motor insurance, to the detriment of motorists who did not make unwarranted claims.
- A new online official Injury Claim Service will be established which will enable claimants to source medical reports to ensure claims are supported by medical evidence before settlement.
- The Small Claims Track (SCT) limit for Road Traffic Accident related Personal Injury claims will be raised from £1,000 to £5,000. This means that the majority of such claims (which are for sums under £5,000) will no longer be subject to fast track rules, where the recovery of legal costs operates on the ‘loser pays’ principle but will be allocated to the SCT, where parties are responsible for paying their own legal costs.
It is hoped that the introduction of the Official Injury Claim Service which has been designed to provide claimants with a user-friendly digital system, supported by guidance, will enable all claimants, particularly those without legal representation, to make and settle their own claim pre-court. It is also hoped that the new system will stop unmeritorious claims from being made.
Since these changes are expected to result in insurance companies being able to reduce their overhead expenditure on motor insurance, insurers are required to provide to demonstrate that they have passed any savings on to customers.
Further information on the new scheme is at https://www.gov.uk/government/publications/whiplash-reform-programme-information-and-faq
Responding to Covid-19: the work of tribunals
All parts of the English Legal System have been affected by Covid 19 – some more adversely than others. The criminal justice system in particular is under severe pressure – not all the result of covid.
By contrast, one sector of the justice system that has risen to the challenge of Covid particularly well is the Tribunals system. It has taken full advantage of new technologies, new ways of working, flexible approaches by judges, support staff and members of the public to ensure that its work has continued – in some cases more successfully than before Covid 19 struck.
In the latest edition of Tribunals Journal, which was published towards the end of March 2021, gives a first hand account, by different tribunal heads, of how they have coped with Covid over the past 12 months.
The outcome is truly impressive and shows how much can be done. Highly recommended read.
Of course, it is not yet clear how far the practices adopted over the past 12 months will continue after the pandemic has subsided. However, my view is that simply going back to the old ways of working, without careful analysis of the experience of the last 12 months, would be a seriously retrograde step.
See https://www.judiciary.uk/publications/tribunals-journal/ and click on the link for the Special Edition for 2021.
The latest edition of Tribunals
Remote/online courts – worldwide developments
Over recent years, there have been significant moves towards the use of Information Techologies in the delivery of legal and dispute resolution services. The Covid 19 pandemic has provided a sharp impetus towards the adoption of new practices and procedures, given the difficulties of holding trials in traditional court-room settings arising from the need for social distancing.
Under the leadership of Prof Richard Susskind, a consortium of groups interested in the development of on-line courts has created a brilliant website, Remote Courts.org, which provides an extensive clearing-house of information about developments around the world.
One of the primary objectives of the website is to try to ensure that, as ideas emerge, wheels are not unnecessarily re-invented. There is now a great deal of international experience which can be drawn on, and this is expanding rapidly.
The site is available at https://remotecourts.org/
Covid 19 and the English Legal System (2) Virtual hearings and on-line courts
Almost exactly a year ago (May 2 2019) I noted in this blog the introduction of the Courts and Tribunals (Online Procedure) Bill. This was to be an important staging post in the process of reforming Courts and Tribunals, to enable more hearings and other proceedings to be on-line. The Bill would have provided for the creation of a new Procedure Committee to deal with how such hearings and other proceedings should take place. The Bill fell when the General Election held 2019 was announced.
Nevertheless, far from derailing the Government’s reform plans, the Covid 19 pandemic has done more to speed up progress towards the development of new online courts than might have been imagined. Although the Online Procedure Bill has not, to date, been introduced, the Coronavirus Act 2020 has effectively stepped in. For as long as the Act is in force (the legislation is time-limited to 2 years), it provides for the transformation of ways in which courts and tribunals are to be run. It does this by disapplying or amending existing legislation regulating a large number of aspects of public policy.
Sections 53 to 57 and Schedules 23 – 27 of the Coronavirus Act deal with the use of video and audio technology in Courts and Tribunals. I do not propose to go through these provisions in detail. But it worth setting out the policy objectives of these provisions. I have adapted these from the Explanatory Notes to the Act:
1. [Although] the courts currently have various statutory and inherent powers which enable them to make use of technology, the Act amends existing legislation so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.
2. Provisions are also made within the Act to enable the public to see and hear proceedings which are held fully by video link or fully by audio link. This enables criminal, family and civil courts and tribunals to make directions to live stream a hearing which is taking place in this manner.
3. There are existing restrictions on photography and sound recording in physical courts. (Section 41 of the Criminal Justice Act 1925 provides prohibitions on photography in courts. The Contempt of Court Act 1981 prohibits the making of unauthorised sound recordings.) These offences were created to protect participants in court proceedings, but long before the concept of a virtual hearing was thought possible. Provisions in the Act therefore create similar offences to protect participants and prohibit recording or transmitting live-streamed proceedings, photography and sound recordings in the context of virtual hearings and live-links.
4. The Act provides for restrictions to be imposed on individuals who are potentially infectious and that the decision to impose such restrictions can be appealed to magistrates’ court. The Act therefore ensures that such hearings should be conducted fully by video link, unless the court directs otherwise, given the person appealing the decision would be subject to restrictions, and there is the risk of passing on the infection if they were to travel to court.
Although these specific provisions will, I hope, have a limited shelf life, they are having the effect that, like it or not, judges, legal practitioners and other court and tribunal users are being forced to use these new technologies.
There have been sporadic reports in the professional legal press and elsewhere that, actually, many really like the new ways of doing business and are surprised how well they work. Others, particularly where the technology does not work as it should, are less enthusiastic.
But the champions of reform among the judiciary and policymakers clearly see these currently emergency procedures as a really valuable practical testbed and the precursor to significantly more substantial reform in the years ahead.
The Act can be found at http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted
A useful report on these matters from Susan Acland-Hood, who is leading the Courts and Tribunals reform programme, was published on 30 April 2020 and is available at https://insidehmcts.blog.gov.uk/2020/04/30/using-remote-hearings-to-maintain-justice-during-the-coronavirus-pandemic/
See international developments at the website: https://remotecourts.org/
Changing the Court and Tribunal estate – revised principles 2019
Introduction
The court and tribunal estate has changed significantly since 2010. In making its changes, the Ministry of Justice applied a number of key principles: maintaining access to justice, delivering value for money, and ensuring operational efficiency. Savings achieved are being used to finance reform of the Courts and Tribunals service. The reform programme will change the ways court and tribunal services are delivered. In particular, improved technology will be designed to enable people to access justice in simpler, easier and swifter ways. Provision for hearings in courtrooms will remain essential for the delivery of justice, but fewer interactions with the court and tribunals system are likely to happen in a courtroom.
Nonetheless, court closures are controversial. Many involve much-loved local historic buildings. Many complain about the time needed to get to an alternative court/tribunal building if an existing venue is shut. In 2018, the Ministry of Justice launched a consultation on the principles in should adopt in relation to any further closures it might argue are necessary. In ‘Fit for the Future: Transforming the Court and Tribunal Estate’, published in May 2019, the Government set out its response to this consultation.
The Government has stated “We need to consider further court closures in the context of our modernisation approach, which will ensure that we provide fair and proportionate access to justice. We expect an increase in the number of people using remote access to the courts which will reduce the use of court and tribunal buildings in the future. We make a commitment that we will not act on that assumption by proposing to close courts unless we have sound evidence that the reforms are actually reducing the use of those buildings.”
Travel time
The issue that worried respondents most was how the time of travel to and from court was being assessed. The Ministry had proposed that the benchmark should be an ability to get there and return home within a day. Respondents argued this was too vague. The Ministry of Justice has responded: “ We have therefore enhanced our principles to make it clear that we expect journeys to court to be reasonable, and set out that for the overwhelming majority of users a reasonable journey would be one that allowed them to leave home no earlier than 7.30am, attend their hearing, and return home by 7.30pm the same day, and by public transport where necessary. We have also set out in much greater detail how we will measure this, what other factors we will consider – for example, the circumstances of users including those that are vulnerable, and the mitigations we can apply when users have difficulty attending court.”
Court/tribunal buildings design
While people were broadly positive about proposals regarding the design of court and tribunal buildings, there was a clear message that the security of those who use and work in our courts and tribunals needs to be paramount, along with ensuring suitable facilities for vulnerable users. The Court and Tribunal Design Guide (published at www.gov.uk/government/publications/court-and-tribunal-design-guide) provides a flexible room design which includes enhanced security standards and provides for the needs of vulnerable victims and witnesses.
Digital support officers
Digital Support Officers will support the introduction and longer-term support for digital services in local courts, as well as support which will assist users who do not wish or are unable to access online services. This development was broadly welcomed. There were concerns regarding the resourcing of these services. The Ministry has stated that it “will ensure that the right number of staff support these activities.”
Future closures
The Ministry expects that increased use of digital services will mean that fewer court and tribunals hearings will be needed in a traditional courtroom setting, and therefore fewer buildings will be needed. However, “we are committed to having clear evidence that these reductions are happening before we decide to close any further sites.”
Revised estates principles
“• Everyone who needs to access the court and tribunal estate should be able to do so. Journey times to court should be reasonable and take into account the different needs and circumstances of those using the courts. Mitigations are available for those who experience difficulty attending court.
- We want to make sure that our buildings are in the best condition possible for those that use them and that they can be maintained at a reasonable cost to the taxpayer.
- We will focus on the provision of multijurisdictional centres which are able to provide flexible access for the people who use our courts and tribunals. We will harness the power of technology to offer enhanced access and greater flexibility.”
Comment
Revised statements of principle will not prevent future controversy. Indeed, at the end of October 2019, the Justice Select Committee issued a very critical report on the whole court reform programme in general and the court closure programme in particular. There have been many critical comments in the professional legal press.
My own view is that the court/tribunal reform programme will, in time, be an improvement on the present system. However as all those who come into contact with courts and tribunals will have to adapt to the new system, there will be nervousness ahead of proposed changes that have not yet been implemented.
The item is adapted from https://www.gov.uk/government/consultations/fit-for-the-future-transforming-the-court-and-tribunal-estate which sets out both the original consultation paper and the Government’s response.
The Justice Committee critique is at https://publications.parliament.uk/pa/cm201920/cmselect/cmjust/190/19003.htm
On-line courts come a stage closer: Bill to establish new On-line Procedure Committee
May 1st 2019 saw an important stage reached in the process of creating more on-line procedures to deal with family, civil justice and tribunals proceedings. The Courts and Tribunals (Online Procedure) Bill was introduced to House of Lords where it had its first reading.
The Bill, when enacted, will provide for the creation of a new judicially led procedure committee. It will develop special rules to ensure that on-line procedures are easy to use and accessible to the public.
This builds on new processes already introduced such as divorce online and money claims online.
A press announcement is at https://www.gov.uk/government/news/even-more-people-set-to-benefit-from-online-court-reform
Transformation: Courts and Tribunals, 2022: HMCTS and MoJ respond to the Public Accounts Committee
I noted in 2018 the critical report from the National Audit Office (see this blog June 2018) and the subsequent report (which I labelled ‘brutal’) from the Public Accounts Committee (see this blog October 2018) on the courts and tribunals transformation programme.
Well, now the Ministry of Justice and HM Courts and Tribunals Service have come back with a series of replies, setting out the progress that has been made with the transformation programme, and setting out targets for the following 6 months.
Between November 2018 and February 2019, MoJ and HMCTS published no fewer than 6 reports, each one responding individually to the six principal criticisms made by the Public Accounts Committee.
The most fundamental question is whether the timeframe for the delivery of the transformation programme is being adhered to. The report on Recommendation 1 – which deals with this question – acknowledges that parts of the programme have not yet been started while listing a substantial body of completed work.
Other responses deal with:
- the impact of the transformation programme on users;
- engagement with stakeholders;
- the financial implications of the transformation programme on the wider justice system;
- evaluating the impact of the reform programme on access to justice and the fairness of the justice system; and
- balancing the portfolio of change projects to ensure that there is some flexibility and an ability to respond to financial pressures.
Interestingly, less than a month after the publication of the latest of these reports a Press Release in March stated that at least some aspects of the Transformation programme will not be completed until 2023. (See https://www.lawgazette.co.uk/news/breaking-hmcts-delays-1bn-courts-reform-by-a-year/5069501.article)
There is a lot of detail in the reports. They can be found by going to https://www.gov.uk/government/news/response-to-public-accounts-committee-transforming-courts-and-tribunals
This links to each of the six individual responses.
In January 2019, the Justice Select Committee announced that it too would be conducting an inquiry into the Courts and Tribunals Reform programme. See https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/court-and-tribunals-reform-inquiry-17-19/
It is right that such a major reform programme should be carefully scrutinised by MPs. They can help to ensure that the transformation, that I think is needed, is delivered.
Money claims on line
For many years it has been possible to start a small money claim by completing forms on-line and submitting them to the court.
In April 2018, following a pilot launched in July 2017, a new on-line process for making a money claim with a value of up to £10,000 (the current small claims limit) has been launched, designed to be easier to use by potential claimants. Rather than having to fill in and post a paper form, or use the original on-line system which dated from 2002, the new pilot allows people to issue their County Court claim more easily, settle the dispute online and also recommends mediation services (which can save time, stress, and money).
According to the Press Release announcing this decision “Early evidence [from the original pilot] suggests that the online system has improved access to justice as engagement from defendants has improved.”
At present, it seems that the only way that one can see how the new process works in practice is to go on-line and submit the details of a potential claim – this includes setting up a special account. What I think is urgently required is one of those ‘how to’ videos that are available on You Tube. (There are videos with this or similar titles but they don’t specifically refer to the new MoJ scheme.)
The press release announcing the development is at https://www.gov.uk/government/news/quicker-way-to-resolve-claim-disputes-launched-online.
If you would like to explore the money claim website more fully, it can be found at https://www.gov.uk/make-money-claim
Reforming the Civil Justice system
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.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 