Senior Judges Speak out Against Government Court Fee Mistakes

Court FeesSenior members of the judiciary have harshly criticised the government with regard to increases in court fees. These increases, the judges feel along with many other parties, represent a serious mistake and are having a profound negative impact on the UK’s justice system.

Lord Dyson, Master of the Rolls, led the verbal attach and was supported by Sir Ernest Ryder and Sir James Munby. Appearing before the House of Commons’ justice committee, Dyson said that the increased fees were impeding the ability of many parties to receive justice under UK law.

“Ordinary people,” Dyson said, were being put off of taking their cases to court by the fees and this left them unable to uphold their rights under the law. Furthermore, it is not just individuals affected in this way, Dyson said, but also small and medium-sized businesses. These are exactly the kind of businesses, he pointed out, that “this government says time and time again they want to encourage.” In light of this, the introduction of a measure that keeps these businesses from upholding their legal rights seems like an especially momentous blunder.

Dyson was then asked about government claims that requiring lawyers and insurers to pay such fees up front would provide an effective safeguard. He responded: “They say that, but what is the research upon which that is based? I have not seen any.”

Lord Dyson also criticised the view taken by the Ministry of Justice ahead of the implementation of the fee increases with regards to demand. The Ministry believed that an increase in fees would not significantly harm demand, which Dyson called “an assumption [with a] very limited evidential base.” He went on to say that he had been “extremely sceptical” about this opinion.

The research carried out before the fee increases were implemented was something Dyson criticised especially harshly, describing it as “hopeless.” There was very little done, he said, beyond the making of 31 phone calls to various parties with an interest in the issue, and the judiciary had warned the government about the “real dangers” of putting up fees in the civil courts but had gone unheeded.

Sir Ernest Ryder added that, following the introduction of the reforms, employment tribunal cases had fallen by 70%. Sir James Munby, meanwhile, was critical of the increases in fees for divorce cases, which he said hit were hitting women disproportionately hard and effectively made for “another poll tax on wheels.”

The Blunder of Recent Civil Law Reforms

Recent reforms in the UK civil justice system have regrettably limited access to justice for many. Reforms to court structure and procedure, although well intentioned, have in many cases made court proceedings more onerous and complex, despite being intended to produce the opposite effect. As such, many are deterred from seeking a legal remedy. Further, the former Coalition government oversaw a slow but subtle increase in court fees- a programme which is set to continue under the current Conservative government.

Other legal reforms have seen a greater emphasis on seeking arbitration, or seeking pre- trial settlements, agreements and resolutions. Although designed to free up court time, and to reduce the caseload on courts and the legal system, such an emphasis has actually been welcomed by many legal practitioners, and has seen justice been achieved in many cases without recourse to the courts. However, increasing arbitration can be seen to have the effect of denying people access to a court to obtain a legal hearing.

The reform that has given rise to the most outrage and concern has been the infamous Legal Aid, Sentencing and Punishment of Offenders Act (2012) (LASPO). Under LASPO, legal aid was all but cut in most sectors of the law. With no legal aid, the cost of going to court had to be carried by the parties involved. Together with rising courts fees, and all the incidental expenses of the law, the price of getting justice rose to a level that is well beyond the means of the average household in the UK- and there is now no legal aid to pick up the costs. Overnight, access to justice became the privilege of the rich, and not the right of the people. Additionally, law centres and law firms have had to close or merge over recent years. Alternatively, lawyers and the courts have had to be creative as regards fees and funding legal cases.

One such example is the sector of personal injury (PI). Although much derided and often mocked, the PI sector was able to weather the legal reforms and LASPO. As regards funding, many PI cases have been funded since 1998 under Conditional Fee Agreements (CFA). Under a CFA, litigants only pay for their legal representation and work on the understanding that your case will be won, and compensation awarded. You do not pay if your case is unsuccessful. Although 2013 saw the regulations and details regarding CFA’s change to take into account changes on the law and legal system, the essential elements of such funding arrangements remains the same.

Consequently, those seeking justice for a personal injury, regardless of the legal reforms of recent years, are still able to get access to justice due to CFA’s. Such personal injuries could arise from anything, such as an accident at home, on the road, or even being injured at work.

Indeed, in 2014/5, the HSE saw nearly 80,000 cases of workspace injuries reported via RIDDOR in the UK, of varying severity, with a Labour Force Survey seeing 629,000 injuries at work. Although litigation may well be the last thing on an employee’s mind following a workplace injury – PI cases, funded by CFA’s, are still very much affordable for the average household, PI is one sector were people can still very much obtain access to justice, an apology, and compensation. Despite legal reforms, it is still very possible to obtain justice following a personal injury, arising from a workplace injury, or elsewhere.

Indeed, the relevant legislation concerning accident at work places great burdens and responsibility on employers regarding workplace accidents and injuries. Further, it is the injured parties legal right to seek justice and compensation they so desire- a course of action which many in the legal sector recommend. Also, the law affords you rights and protections from employers while you make such legal claims.

Other areas of the law have similarly had to adapt in the face of such reforms to the justice system – with mixed results. Amidst public funding cuts, access to justice has been increasingly limited. However, the legal sector is evolving to tackle that, and continues to fight the damaging reforms.

Government Blundered With Rushed Surveillance Laws

When the government introduced the Data Retention and Investigatory Powers Act last year, it was nothing if not controversial. A lot of people were concerned about the fact it gave the government the power to collect communications data from suspects (who could and in many cases presumably would still prove to be innocent). The fact that an act allowing the government to intrude deeper into people’s private lives was rushed through parliament in just a few days – an absurdly short timescale compared to most other pieces of legislation – didn’t do much to endear it to the public or to civil rights organisations such as Liberty.

Now, one year on, a possibly unprecedented legal challenge has left the act itself and the rushed nature of its introduction looking like one big blunder on the part of the government. Not just the controversy of the act but concerns about its actual legality gave rise to a legal challenge from within the government’s own ranks, with two MPs taking the case against it to the High Court. A court challenge to government legislation from MPs is certainly very unusual, and some believe this is the first time it has happened at all.

Deputy Labour leader candidate Tom Watson and Tory David Davis challenged the act on the basis that the government had failed to comply with laws protecting the human rights of its subjects. It had the support of the human rights group Liberty, which criticised the way the act was “was privately agreed following discussions between the then three main party leaders” and then “became law within just three days.” This, Liberty said, “[denied] time for proper parliamentary scrutiny, amendment or even debate.”

The High Court has now decided that the challenge was perfectly well-founded; in its hurry, the government failed to comply with not one but two pieces of EU legislation designed to protect the rights of ordinary people. Both the Human Rights Act and the European Union Charter of Fundamental Rights contain provisions designed to protect the right of a government’s subjects to privacy which the UK government has infringed. The ruling (against which the government says it will appeal) has basically cancelled out the offending parts of the act – though this will not take effect until next March, giving the government time to come up with a new, better thought-out plan that will be more compliant with international law.

The timing of the ruling is also unfortunate for the government. It coincides with wider discussions about government surveillance and individual privacy as the government seeks to introduce yet more legislation designed to help it monitor people’s private communications. David Cameron is championing a ban of popular messaging services like WhatsApp, based on a reluctance to “allow a means of communication between people which… we cannot read.” This particularly well-publicised measure forms part of a wider raft of unpopular proposals dubbed “the snoopers’ charter.”

Police Blunders in Rotherham Highlighted by NCA

The National Crime Agency (NCA) has listed the blunders and failings of South Yorkshire Police in the much-publicised Rotherham sex abuse scandal. The NCA’s report highlights a 16-year period of intensive blundering on the part of the police between 1997 and 2013, resulting in 48 recommended areas of improvement for the force.

More than 1,400 children, some as young as 11, were sexually abused in the Rotherham area during this period by men who were free because of South Yorkshire Police’s failings, the NCA has said. The NCA, which has been called Britain’s answer to the FBI, recommended nearly 50 ways in which the police force should overhaul its investigations of child sexual abuse.

When the scandal broke, it led to public outcry. The extent of the abuse taking place in the Rotherham area was revealed in August 2014 following the publication of a report from Professor Alexis Jay. A number of prominent figures in the region’s police force resigned following the revelations, including the police and crime commissioner for South Yorkshire Shaun Wright. The NCA’s investigation into the matter began in December, and the recent report is the result of this investigation.

Among the blunders highlighted by the NCA in South Yorkshire Police’s child sexual exploitation investigations are a failure to work properly with local authorities and not making use of evidence-gathering methods that were available to them. Furthermore, the police overlooked or failed to make use of ways in which they could have protected victims from further exploitation.

“Over the years,” the NCA’s report said, “intelligence and investigative opportunities in relation to child sexual exploitation have been overlooked by South Yorkshire police.”

However, the report did recognise that South Yorkshire Police has already begun the process of improving and moving away from past failings when investigating this kind of crime. According to deputy director of the NCA Andre Baker, who led the review, there might be new opportunities to pursue criminals who were previously identified in investigations but against whom no action was previously taken.

NCA director Trevor Pearce echoed these sentiments, saying: “South Yorkshire Police has already made a number of arrests in relation to these matters and other offenders who believe that their past actions will never catch up with them should think again.”

However, it seems South Yorkshire Police are not quite done blundering yet. The NCA looked into South Yorkshire Police’s current investigations into the scandal and found “improvements that need to be made at both strategic and operational level.” One of these investigations, Operation Mark, is to be picked up by NCA and integrated into their own Operation Stovewood as it lagged behind the other two in terms of standards.

Justice Agencies Letting Victims Down

An independent report by the Victims’ Commissioner, which has been published today, concludes that justice agencies are letting down the victims they are supposed to be safeguarding. Baroness Newlove described the results of her report as shocking.

Baroness Newlove took more than 200 victims’ experiences into account in producing the report, which contains performance assessments of every justice agency listed by the victims’ code.

The Victims’ Commissioner’s review is intended to be the first of a number of independent reviews looking into aspects of the justice system. It is not a positive start to the process, concluding that the agencies that are supposed to protect and ensure justice for victims are in fact letting them down seriously.

Of the 200+ victims consulted in order to produce the review, nearly three in every four were not happy with the service that justice agencies had provided. If they wanted to raise their issues with those agencies, they faced yet more difficulties. More than half said that the complaints process for the agency in question was hard to use.

In particular, Baroness Newlove said she was shocked at the number of victims who told her they had felt like they were being ignored. When they tried to raise complaints about the way they had been treated, many said they were left confused or their complaints were simply dismissed.

“All it takes,” Baroness Newlove said, “is basic human decency to explain to a victim, in a sensitive and timely way, why something has gone wrong and what they can do about it.”

The report sets out standards which, the Victims’ Commissioner feels, criminal justice agencies and the government should be expected to follow when they are dealing with victims of crime who have concerns. In particular, she feels that these bodies should:

  • Give clear information about the ways in which they are able to support victims who have concerns or who would like to raise complaints about a service.
  • Explain how the victim will be kept updated and informed on how their complaint is progressing at all stages of the process.
  • Use proper, clearly-defined recording practices and processes that are designed to ensure a proactive and appropriate approach in handling all victim complaints.
  • Publish data to demonstrate the ways in which their services have been improved as a result of acting on victim complaints.

Justice secretary Chris Grayling claims that significant improvements have already been made in the services and support that are given to victims. “But,”we are also the first to acknowledge that more can, and should, be done.”

Inappropriate Sentences and Poor Representation in Youth Courts

A recent report has painted a damning picture of Britain’s youth justice system. The report suggests that cases involving child defendants are poorly handled, and the system is riddled with blunders such as inappropriate sentencing.

The problem, it seems, stems from a tendency within the law to unduly look down upon youth courts. They are often and dubiously treated as simpler than regular courts and even less important. For this reason, they are used as a way for young and inexperienced legal professionals to gather experience. The result is that young people are purely represented and receive little consideration for their needs. Due to a combination of general inexperience and lack of familiarity with the specifics of youth courts, legal professionals are prone to mistakes, blunders and poor practice. Frequent mistakes are made, particularly pushes for sentences that are incorrect or inappropriate.

The report compiles the findings of an enquiry by MPs led by Lord Carlile. The report contains a number of recommendations to remedy the situation and improve the standard of practice in youth courts. In particular, the report points out that the standard of specialist training for legal professionals practicing in youth courts are much lower and less consistent than in other, comparable specialist courts.

The large disparity between standards in youth justice courts and family courts, in particular, has highlighted as a point of concern by charity Just for Kids Law. Both courts handle cases involving children and young people whose needs are likely to be similar, yet legal professionals in one get far less specialist training than those in the other.

The report calls for the implementation of better training “without delay.” It suggests that professionals entering the youth justice system should benefit from at least ten hours’ worth of specialist training, followed by a two hour refresher course to be taken annually. This training would cover the needs of children going through the youth justice system in terms of welfare, development, communication and mental healthy. It would also cover the specialist laws relating to youth justice, and how child defendents can participate most fully and fairly in proceedings.

Most respondents to the enquiry agreed that significantly better training procedures should be implemented to solve the problems with the current system. Among these respondents was the Law Society, who also said that cases where under 18s appear in crown court should be the “rare exception.” The crown court, it said, was “inappropriate” for child defendants because its “intimidating nature” would prevent them from participating properly and compromise their right to a fair trial.

Tribunal Fees Prove Detrimental to Number of Claims

The controversial introduction of the new tribunal fees enforced in July have amounted to a plummeting in employment tribunal claims in the final quarter of 2013. The final quarter of 2013 showed that the number of claims made were 9,801 which represents a 70% fall compared with the final quarter in 2012 and comparing to the third quarter of the previous year (2013) there was a similar 75% reduction. These figures were anticipated by many professionals and academics which forecasted that there would be a major slump in employment tribunal claims as a result of the increased cost of legal action which was described as a move aimed to reduce the burden from those employees lower in the pecking order.

The fees which were introduced by the government in July meant that it now costs £250 to issue a claim which is up from £160, depending on the type of claim, with further hearing fees of between £230 and £950. The head of employment at London company Kingsley Napley, Richard Fox who is also chairman of the Employment Lawyers Tribunal stated “it is now clear that many employees have been deterred from bringing tribunal claims since fees were introduced last year”. He believes that although this door is now shut for many employees as a means to resolve their employment troubles, other options will soon open such as “by turning to trade unions to fight their corner”.

Unison the trade union last month sought to challenge the legality of the introduction of the new tribunal fees. Their legal action was subsequently dismissed by the High Court. In his judgment in the case of Unison v Lord Chancellor Mr Justice Irwin and Lord Justice Moses stated that the trade union’s case was premature and stated that at this stage there was a lack of concrete evidence which is needed to overturn the regime.

The trade union which was unhappy with the decision reached stated their intention to take their case further by lodging an appeal in the Court of Appeal. They want the court to reconsider the facts and especially the argument put forward that the fees will have a much more disproportionate effect on women than initially projected. The figures were labelled as ‘shocking’ according to the trade union’s general secretary, Dave Prentis. He stated that the negative effect which the fees for the tribunal system brought is no “blatantly obvious”. He says that their introduction is simply unfair and that they should be reversed to the old system. The argument put forward by the general secretary is that money should be no obstruction to justice whether that be for employment of accident claims solicitors, and that it is atrocious that this is the effect which the government is bringing on many workers across the country wishing to seek remedies through the tribunal system.

Update on Jackson Reforms

There is still so much controversy raging as to whether the Jackson reforms are indeed a set of logical proposals that will bring balance back to a system where costs of injury compensation claims seem to be spinning out of control, or if these will just make it harder for individuals to gain access to the justice they deserve after a wrong has been done to them.

Jackson Reforms to Change Everything Come April

The Legal Aid, Sentencing, and Punishment of Offenders Act (LASPO) together with the new Civil Procedure Rules, will bring into full effect most of the recommendations of Lord Justice Jackson this April. And with April just little less than just four months from now, it is already very obvious that the post-LASPO litigation world will be radically different from the one that lawyers have already been accustomed to for more than a decade now.

Jackson Reforms and the Great Changes it will bring to the Legal World

With the new rules on both cost and case management rules, damages-based agreements (DBAs), referral fee bans, end to after-the-event insurance premiums recovery, and qualified one-way costs shifting set to be implemented this April, the legal industry will indelibly be reshaped for many years to come. One thing that no doubt will happen is the staggering impact that the reforms will have on the business model wherein many law and legal firms are being run. The ability to retrieve the success fee from a defendant who lost the case has changed everything that one can think of in this field.

Another thing that will definitely be gone a little less than four months from now is the recoverability of insurance policy premiums that clients have taken out in the event that they lost the case and were deemed liable for any legal costs. Personal Injury (PI) solicitors and practitioners are definitely going to face severely difficult times ahead of them. Sue Nash, founder of Omnia and a veteran costs lawyer, predicted that ‘personal injury fee income will reduce by 25 to 50 percent over the next two to three years’.