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Advice provision, Courts, Mediation and ADR, System design, Tribunals

JUSTICE sets out radical re-envisioning of courts and tribunals

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JUSTICE has published a new report, Delivering Justice in an Age of Austerity, which sets out a vision of systemic change to the way civil courts and tribunals resolve disputes. The report is the work of a Working Party set up last year and chaired by The Rt. Hon Sir Stanley Burnton.

The report recommends a new model that could be applied in any first-instance proceedings. It will feature:

  • a primary dispute resolution officer –a ‘registrar’ – who is legally qualified, trained in mediation and has expertise in particular types of disputes. The registrar will have the power to strike out a case, resolve it using a range of approaches, or refer to a judge ‘only those cases where no other resolution is likely to be effective or appropriate’.
  • an integrated online and telephone service to provide effective access to information, advice and assistance ‘for the majority of those who would not otherwise have access to such services, while also freeing up scarce personally delivered services for those who need them most.’

Impetus for change

The report makes clear that its proposals are not intended to eradicate the ‘justice deficit’ and that ‘initiatives to defend and extend the legal aid budget remain critical. For some litigants, even in a reformed system, there will be no realistic alternative to legal assistance, and the availability of legal aid for this group is a pressing concern.’

Nevertheless, the report acknowledges the need to envision radical change:

‘Complex and adversarial procedures in the civil courts and some tribunals necessarily put those unable to afford legal representation at a serious disadvantage. The consequence is a system in which access to justice has been severely compromised for ordinary people, while expensive judicial resources are used wastefully as judges attempt to fill the gaps left by the lack of legal advice and advocacy.’

Wider role for registrars

Registrars currently take an active role in case management in many tribunals. The JUSTICE report proposes a wider remit that would include a registrar’s having the power to:

  1. strike out a statement of case where appropriate;
  2. undertake an early neutral evaluation (ENE);
  3. undertake mediation; or
  4. refer the case to a judge where no other resolution is likely to be effective or appropriate. Examples include cases raising complex legal and factual issues, cases requiring oral evidence, potential test cases, or cases requiring interpretation of legislation or policy.

The report suggests that the new approach could be used across most chambers of the First-Tier Tribunal and in much of the County Court and the civil jurisdiction of the High Court. It suggests the approach would be most useful in those areas where one or more of the following factors are present:

  • there are high numbers of litigants in person;
  • there are difficulties for the court in extracting the information necessary for a just decision before the final hearing, often indicated by a high rate of adjournments;
  • there are high numbers of successful appeals;
  • the litigants have difficulty in understanding the relevant law and complying with the required procedure.

Models of resolution approach

Building on the 2013 report of Judicial Working Group on Litigants in Person and the Civil Justice Council’s ADR Advisory Group report published in February this year, the report takes those recommendations further, proposing a wider remit for reform. Looking to other models of dispute resolution, the report quotes Lord Justice Sullivan’s 2015 Tribunals Annual Report:

“We must ensure that tribunals remain accessible with relatively informal and straightforward procedures. In this respect, while the courts have much to learn from tribunals, I am sure that tribunals have much to learn from the procedures adopted by Ombudsmen.”

The proposed approach of the registrar appears to reflect that of ombudsmen – a claim is filed, with supporting evidence, a defence is received, and the registrar contacts the parties for clarification or further information. The registrar then carries out a form of early neutral evaluation (ENE) and writes to the parties with an assessment giving an authoritative view on the likely outcome should the case proceed to resolution by a judge, based on the facts and law.

Parties would then be given the choice either to accept the registrar’s assessment or to take the matter further (i.e. resolution by a judge). If one or both parties requests that the case proceed to a judge, the registrar’s assessment should not be made known to the judge until after judgment has been given. However, the registrar’s evaluation can be taken into account by the judge when a decision on costs is made (in those cases where there is a power to make an award of costs).

Registrars could also offer mediation, and this would only take place if both parties are willing. Mediations would be carried out by telephone or online, with mediation on court or tribunal premises only in exceptional cases. Where agreement is reached through mediation, this would take the form of a Tomlin order, staying proceedings on the terms of the agreement with a right for either party to apply in relation to enforcement.

Selecting the appropriate resolution method

The report sets out a number of underlying principles for identifying the appropriate method of dispute resolution in each case, including:

  • Relative levels of power and resources between the parties. For example, a significant imbalance of power and resources is likely to arise in individual v state disputes, or where only one party is legally represented. Asylum and mental capacity cases would never be suitable for mediation.
  • Degree of legal and/or technical complexity
  • Question of fact versus question of whether a process has been followed. For example, administrative law cases may be suitable for ENE but not for mediation.
  • Levels of rights versus interests in dispute. For example, social welfare benefits, immigration and human rights cases are likely to be more suited to ENE.
  • Degree of rules versus discretion in the legal/policy framework
  • Test case/public interest litigation. Matters likely to have significant precedent effect would be referred to a judge.

Evidence of effectiveness

Referring to pilot ADR schemes run in various tribunals, the report implies that these have proved to be successful. However, research on those pilots revealed mixed findings on the effectiveness of those pilots. For example, the evaluation of the pilot using early neutral evaluation (ENE) in Disability Living Allowance appeals demonstrated that the use of ENE did not achieve swifter resolution of cases. The use of ENE was found to be less cost effective than the traditional process – the evaluation found that cases subject to one or both stages of ENE had an average unit cost of £222, compared with £202 for the non-opt-in cases. Less tangible impacts were identified, such as the satisfaction level of appellants who welcomed the chance to talk through their case. There were examples where the appellant proceeded to hearing despite the judge’s advice to withdraw, and subsequently won their appeal and gained a higher settlement. Such examples, in the words of the researchers, ‘undermined the achievements of ADR in respect of proportionate dispute resolution’.

The report also suggests an improved system of advice and information to litigants, accessed through telephone and an online platform. It proposes to fundamentally improve and expand upon the reach of the Legal Aid Agency’s Civil Legal Advice Telephone Gateway (“the Gateway”), the only publicly funded source of telephone help at the initial stage of a legal problem. The effectiveness of the Gateway was recently criticised in an independent research evaluation, criticism noted in the JUSTICE report.

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