Monthly Archives: February 2015

Access to justice in decline

 Andrew Arden QC and Clare Cullen consider the depressing decline in access to the courts.

The costs of issuing a claim are increasing yet services provided by the courts continue to diminish: many courts are now running an appointment-only service and it is common to see litigants, seeking to issue a claim or application, being turned away because they don’t have a pre-booked appointment. The “unassigned list” in Central London County Court is said to have been a fiasco (Nearly Legal) and is a further example of decline: what it means is that no judge is assigned to the case in the hope that one will become free, e.g. because another case settles. The result is that parties are often left waiting most of the day, a judge may still not become available and the case is adjourned – an enormous waste of money for all concerned and another illustration of putting the burden of state cuts on individuals. Moreover, because lawyers know about this sort of thing, and how to manage it, those most affected are usually the unrepresented, which in turn means – to use the phrase du jour – that the burden falls on those with the least broad shoulders.

Access to the courts is not only restricted by increasing fees and declining service: the reductions in legal aid are of course playing a major part. The Public Accounts Committee in its report, Implementing Reforms to Civil Legal Aid, Thirty Sixth Report of Session 2014-2015, has been critical of the Ministry of Justice’s legal aid reforms citing a failure properly to research the impact of the reforms including whether those who are entitled to legal aid are actually able to access it and the potential costs arising elsewhere in the public sector – presumably they have in mind delays, adjournments and cases (when they are heard) taking longer. The President of the Family Division has been particularly robust in his criticisms.
Over the past few months, the Government has responded to two consultations relating to these issues: one on increased court fees; the other on legal aid for committal proceedings following a breach of the new injunctions under the Anti-Social Behaviour, Crime and Policing Act 2014.

Increased court fees

In Enhanced court fees: the government response to Part 2 of the consultation of reform on court fees, January 2015, it was announced that the fees for issuing a claim valued above £10,000 will rise to 5% of the value of the claim, subject to a maximum fee of £10,000. Where the claim is for an unspecified sum, the issue fee will be 5% of the estimated value of the claim with the same upper limit.

The plans have, unsurprisingly, been criticised by many in the legal profession, including senior Judges: the concern is that fees will be prohibitive and may result in more litigants acting in person because the money which would have been spent on legal fees will be taken up paying them. The Government has rejected this criticism on the basis of rather dubious research which found that “fees are a secondary consideration in the decision to litigate”: the research, in 2013, was based on 18 telephone interviews and, in 2014, on responses from 31 civil court users only 12 of whom would have been affected by the proposed changes.

In housing, this increase is particularly concerning for disrepair and unlawful eviction claims, often involving an unspecified sum for general damages which are hard to quantify at the beginning of the claim. The judiciary’s understanding of the proposals, having had sight of the draft Statutory Instrument, is that the maximum fee of £10,000 will be payable where the sum claimed is not limited in the claim form. The Government suggests in response that, where the claim is for an unspecified sum, any fee payable will be based upon the estimated value of the claim.

This is extraordinary, utterly ignorant, wholly unprofessional: the amount paid will be known to the other side; accordingly, a litigant is torn between stating a high sum which will generate a high issue fee and stating a lower sum which will – inevitably – set the parameters not only for any negotiations but even for the court itself on judgment. (To pre-empt the response that there are estimates even under current arrangements, the brackets are so wide that they do not have this effect).

Independently of this, the fees represent a significant increase from present levels: the issue fee would be £1,250 for a claim valued at a maximum of £25,000 and £750 for a claim at a maximum of £15,000. (Currently, a fee of £610 applies to a claim valued between £15,000- £50,000 and £455 to a claim valued between £5,000-£15,000).

Whilst a claim for damages for unlawful eviction remain – at least for now – within the scope of legal aid, a claim for disrepair damages does not. These claimants will often be vulnerable and have limited means; it is that vulnerability which is part of what exposes them to the practices of bad landlords; coupled with the lack of legal aid, the increased fees are likely to limit access to the courts for many with a claim.

To add to the concern, the response to the consultation also announced the Government’s intention to increase the issue fee for possession claims to £355, the second rise in two years. In arrears cases, these fees will increase a debt which the tenant is already unable to pay, prolonging their time in debt, while, for social housing providers, it will be an additional cost that will prevent money being spent elsewhere.

Legal Aid – committal proceedings

The second consultation response, Anti-Social Behaviour, Crime and Policing Act 2014: changes to remuneration for legal aid services, concerns legal aid for committal proceedings where there has been a breach of the new injunction introduced by s.1, Anti-Social Behaviour, Crime and Policing Act 2014 (replacing ASBIs and ASBOs) and is equally worrying. Whilst the new injunctions will fall within the scope of civil legal aid, committal proceedings for breach will be under criminal legal aid and will therefore be paid at criminal rates which have been subject to such much public comment and criticism that there is no point in repeating it here.

Despite responses to the consultation pointing out that the vast majority of breach proceedings will be in the county court, the Government has rejected the proposal that proceedings should fall within civil legal aid on the basis that “the focus of breach proceedings will…..be on proving beyond reasonable doubt whether breach has occurred” and, therefore, that the proceedings are “simpler in terms of process than those for applications, variations, discharges or appeals”.

This is just nonsense. It is common – close to usual – for ASBI breach proceedings to be joined to an application to vary the ASBI or a claim for possession based on the same facts (which will be the case in the context of the new injunctions). Accordingly, as many civil legal aid practitioners will not have a criminal legal aid franchise, prima facie a criminal practitioner will be needed for part of the case while a civil practitioner for the remainder.

That would, of course, generate an absurd additional cost, so what is suggested is that civil legal aid practitioners will be able to apply for an individual case contract where necessary (itself giving rise to a public sector cost handling applications) although it does not appear that such contracts will be routinely awarded even where solicitors were involved in the original injunction proceedings: it is anticipated that such a contract will be awarded “where the provider has had substantial involvement in the original proceedings, where continuing to act for the individual represents value for money, and where it is in the interests of justice” but the example given is in respect of “clients with incapacity issues or learning difficulties, who might suffer from loss of continuity of representation” as if other defendants won’t.

Even if the contracts are granted routinely, the administrative burden of having to apply (which is likely to take some time) and the criminal rates available will deter many civil legal aid providers from seeking them, with the result either that those facing committal proceedings will lose all representation, alternatively continuity of representation while the case is taken up by a criminal practitioner who may have no familiarity at all with the housing law issues involved.

Even where such a contract is awarded, there is no guidance as to how lawyers are to separate out their time on the breach claim as opposed to – say – a variation claim and/or a possession claim. We can make an educated guess: though said to be simple, we suspect that in practice public funding will find that much more time is spent at the lower, criminal rate than civil.

Conclusion

The two consultations have followed a depressingly familiar pattern: responses largely ignored and the Government pressing ahead with proposals regardless of well-founded, professional objections to them. The impact that the increased issue fees will have on litigation remains to be seen but the rise risks making the courts prohibitive to even more people than now; the proposals for committal proceedings for breach of the new injunctions will likewise have an impact on access to justice (in circumstances incidentally where a person’s liberty is at stake) significantly reducing the solicitors and the skills available in relation to this work.

We despair!

Leave a comment

Filed under Uncategorized