Posts Tagged ‘reform of civil justice’
Reform of the justice system: update on progress
Those who are following the progress of the programme to change the ways in which the justice system works might care to look at the presentation delivered to the 4th Annual Users Conference.
Online sessions were spread across three days (3, 4, 5 November 2020) and covered the work of criminal, civil, family, tribunals and cross-jurisdictional reform projects over the past 12 months, a year that has been significantly impacted by the need to respond to the pandemic.
Readers can access the main speeches at https://www.judiciary.uk/announcements/civil-justice-councils-9th-national-forum-on-access-to-justice-for-those-without-means/
This links to the principal speeches which are on YouTube.
Further information and powerpoint presentation can be accessed at https://www.gov.uk/government/news/hmcts-heads-online-for-2020-public-user-event#history
Transformation of the Justice System: reports on the progress of the HMCTS reform programme
It is a some time since I wrote about the great Transformation of the Justice system programme that was launched in 2016. It is quite a challenge to follow the progress of the reform programme. I thought it would be useful to bring together the principal documents which relate to the project which will fundamentally reshape the justice system for years to come.
- The Transformation of the Justice system project was formally launched in a joint statement issued by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals in September 2016.
See https://www.gov.uk/government/publications/transforming-our-justice-system-joint-statement
Initially planned for completion in 2021, the end date is currently set back to December 2023, though many parts of the programme have been completed. The principal features the programme can be seen in the following diagram.
- The programme was the subject of an initial review by the National Audit Office, published in May 2018. This is available at https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/(See this blog 7 June 2018)
- This was followed by a report from the Public Accounts Committee published in July 2018 which is available at https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/976/97602.htm.
The PAC report resulted in six separate responses from the Government, details of which are at https://www.gov.uk/government/news/response-to-public-accounts-committee-transforming-courts-and-tribunals. (see this blog 10 March 2019)
- One issue, raised in both the above reports, related to the adequacy of HMCTS engagement with stakeholders. HMCTS responded by commissioning an independent audit of stakeholder engagement which was published in October 2019. See https://www.gov.uk/government/publications/hmcts-stakeholder-perception-audit-report-2019. A further progress report on stakeholder engagement was published in January 2020. (It can be found by googling HMCTS Engaging with our external stakeholders 2020 which leads to a Report published in Jan 2020.)
- A second report from the National Audit Office was published in September 2019. This is available at https://www.nao.org.uk/report/transforming-courts-and-tribunals-a-progress-update/
This has not to date led to a further report from the Public Accounts Committee.
- At the end of October 2019, the Justice Select Committee published its own report on the Courts and Tribunals Reform Programme. This can be found at https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/court-and-tribunals-reform-inquiry-17-19/
HMCTS issued a response to this report in the form of a Press Release, which is available at https://www.gov.uk/government/news/hmcts-response-to-justice-select-committee-report-on-court-and-tribunal-reforms
- HMCTS provides updates about progress with the reform project. Initially these appeared in six-monthly updating reports which were published in 2018 and 2019. The last of this series appeared in Summer 2019. See https://www.gov.uk/guidance/hmcts-reform-programme-reform-update. Current updates are contained within the monthly blog Inside HMCTS, which is available at https://insidehmcts.blog.gov.uk/
- In each year of the project, HMCTS has run a meeting, which presents an account of progress with the programme to stakeholders. The most recent of these events was held in November 2019. The presentation slides used at this meeting are available online and present very useful picture of progress up to that date. They can be accessed from https://www.gov.uk/government/news/hmcts-hosts-3rd-annual-public-user-event. Other engagement events, both past and planned are listed at https://www.gov.uk/guidance/hmcts-reform-events-programme.
I hope that this blog entry, listing key documents and reports relating to the transformation project will be useful for those wanting to get an overview of the project and its progress. I will endeavour to keep readers up with more specific developments as they occur. For the moment, many of these have become intertwined with arrangements that have been made to adjust the work of the courts and tribunals to the effects of the Covid 19 pandemic.
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!)
Employment Law Hearing Structures: Consultation from the Law Commission
The headline features of the Transformation: Courts and Tribunals 2022 programme have been about major changes to the ways in which courts and tribunals work: on-line courts, digitization of process, investment in IT and so on.
But in parallel with these major changes, other more technical changes are being contemplated which it is hoped will improve the efficiency of the work of courts and tribunals.
The recently announced (26 September 2018) consultation paper Employment Law Hearing Structures is an example of how the government is seeking to take this opportunity to make some technical changes to the ways in which courts and tribunals dealing with employment and discrimination cases interact.
For example:
- At present Employment Tribunals can only claims for contractual damages, where the damages claimed are below £25,000;
- Employment Tribunals operate on a ‘no-costs’ basis – i.e. the winner of the case cannot seek an order for costs from the losing party;
- Employment Tribunals have no power to make an order to enforce a decision that it has made.
- Courts have exclusive jurisdiction over no-employment discrimination cases
These and other rules mean that there can be circumstances in which cases have to go to courts that might be better dealt with by the tribunal, and vice versa.
The detail of the proposals in the Consultation Paper are not considered here, though of great importance to specialist employment lawyers and other interested in employment matters.
But the existence of the consultation is flagged here to indicate yet more ways in which the detailed work of courts and tribunals is likely to be amended under the general banner of the Transformation programme.
(A similar exercise, though not currently the subject of a public consultation, is ongoing in the context of the resolution of housing and property disputes where complex boundaries have to be negotiated between tribunals and courts which mean that cases may need to be launched in more than one forum. There is likely to be greater public debate on these issues when the promised Consultation Paper on a new Housing Court is published later in 2018.)
The Law Commission’s Consultation Paper can be seen at https://www.lawcom.gov.uk/consultation-launched-into-how-employment-law-disputes-are-decided/
The Consultation runs till January 2019. Final recommendations will be published in 2019.
Transforming our Justice System: Transformation – Courts and Tribunals 2022
Despite the loss of the Prisons and Courts Bill 2017 at the General Election, held in June 2017, work on the Transforming our Justice System programme continues apace. (For those aspects of the reforms which need legislation, a replacement bill is expected shortly.)
Keeping up to date with the progress that has been made is hard, as most of the changes do not hit the headlines in the media. (About the only issue which has been subject to any public discussion has been criticism from the Bar about a pilot trialling the use of courts for longer periods during the day. The criticism focussed almost entirely on the inconvenience this would cause to barristers – no mention of the possibility that the public might prefer court hearings outside the traditional 10-4 Monday-Friday time frame.)
Specific developments can be noted by keeping an eye on Press Releases from the Ministry of Justice. A recent example is the announcement of the opening of the first two Courts and Tribunals Service Centres in Birmingham and Stoke on Trent
See https://www.gov.uk/government/news/first-courts-tribunals-service-centres-launched
A more rolling source of news can be found in the extremely interesting blog relating to the transformation programme – now called Transformation: Courts and Tribunals 2022. This provides news about the new services that are being developed for modernising the courts and tribunals system, both giving accounts of what is currently on going and also what is planned.
The link to the blog is at https://insidehmcts.blog.gov.uk/category/transformation-courts-and-tribunals-2022/
It is possible to sign up to an email notification service so that you are told when a new blog entry is published.
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
Queen’s Speech 2017 and the Parliamentary session: 2017-2019
The draft legislation relating to the exit of the UK from the European Union is going to be extremely complicated – both in terms of the technical content of the proposed measures, and in terms of the political controversies that the legislation will attract, arising from the fact that Mrs May is leading a minority Government in the House of Commons and that there is a great deal of opposition to Brexit in the House of Lords.
The Government has therefore decided that, exceptionally, the current Parliament should last for two years rather than more normal one. Thus the next Queens Speech, following that delivered in June 2017, will not be made until May 2019.
In addition to the raft of measures required to deal with different aspect of Brexit, the 2017 speech contained annoucements about two measures that will have specific impact on the English legal system.
- “Legislation will be introduced to modernise the courts system and to help reduce motor insurance premiums.” This will not actually be wholly new. The measures relating to court reform and insurance premiums were originally contained in the Prisons and Courts Bill 2017, which fell when the 2017 General Election was called. The revised version of the new Bill has not yet been published but may be anticipated in Autumn 2017.
- “To support victims, my government will take forward measures to introduce an independent public advocate, who will act for bereaved families after a public disaster and support them at public inquests.” This is a reform that has long been called for. The details of this measure are not yet available.The Queen’s speech may be read at https://www.gov.uk/government/speeches/queens-speech-2017
Transforming the English Legal System: Civil Justice
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 willincrease signposting to mediation and alternative dispute resolution services tohelp 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 legalcosts which can be recovered from the losing side by the successful party to aclaim, at a prescribed rate. (For civil claims, these are set out in the CivilProcedure Rules). We will build on measures introduced in the last Parliament forlow value personal injury claims, to limit the level of legal costs recoverable.These measures provide transparency and certainty for all parties and aredesigned to ensure that the amount of legal work done is proportionate to thevalue of the claim. We are keen to extend the fixed recoverable costs regime toas many civil cases as possible. The senior judiciary will be developing proposalson which we will then consult.iv. Civil enforcement: We will give the [county court] powers to issue attachment ofearnings orders to the High Court to create a simpler, more consistent approachto enforcement, and make sure more people can get the money they are owed.We will also commence the fixed deductions scheme (fixed table) provisions inthe Tribunals, Courts and Enforcement Act 2007 in the County Court andintroduce fixed tables in the High Court, providing transparency and certainty ofthe rate of deductions from debtors’ earnings to pay back their creditors.v. Replacing statutory declarations in county court proceedings with a witnessstatement verified by a statement of truth: We will replace outdated and currentlyinconsistent procedures, which are inconvenient for people to use and resourceintensive to administer, with a more modern digital approach but keeping strongpenalties 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
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:
- a review of High Court divisions;
- a single portal for the issue of all civil proceedings, leading to the eventual abolition of District Registries;
- 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;
- the possible convergence of Employment tribunals and the Employment Appeal tribunal with the county court;
- 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/
Protecting Intellectual property rights: the Intellectual Property Enterprise Court
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.
- 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 otherwords, 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.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 