Litigation and things

Forked Tongues

As some of you may know the MoJ’s court interpreter service launched a new scheme in January that required courts to select interpreters from a single agency instead of from the National Register of Public Service Interpreters. The planned saving in dosh? £18m. 
Problem: it soon descended into bedlam with long and expensive delays and many instances where interpreters simply weren’t up to the task – if they turned up at all, that is!

Use of Blackberry etc in Court and Live text based communication now okay!

In the past you may have been in ignorant bliss! Lord Judge has fortunately handed down guidance on using laptops and handheld devices/ personal digital assistants (PDAs) to communicate directly from courts in England and Wales. The new guidance makes it clear that there is no longer any need for members of the media or legal commentators to make an application to communicate from court.
‘Courting’ sees no abating
So far this year (and bear in mind it’s only March) we’ve had Pinsents and McGrigors confirm they’ll merge, along with Cumberland Ellis and Wedlake Bell, and Kerman & Co and Max Bitel Greene and I news of Martineau’s tie-up with Sprecher Grier Halbertstam.
Herbert Smith and Freehills have admitted they’re courting and while DWF and Cobbetts called it a day on their talks, you can bet DWF is still on the prowl.

Civil justice reforms – the county courts – small claims limit to be increased

The government has published its response to the consultation issued in March 2011 seeking views on proposals for significant reforms to the civil justice system in England and Wales (9 February 2012). There are broadly four areas of reform: preventing costs escalation, ADR, debt recovery and enforcement, and structured reforms. This includes key changes such as establishing a single county court, automatic referral of small claims to mediation and streamlining procedures for third party debt orders and charging orders. The most significant change is likely to be the increase in the small claims limit to £10,000 with clear signalling that it may rise to £15,000 thereafter. There is no direct impact on residential mortgage possession claims.

This coincides broadly with the firm guidance Mr Justice Akenhead gave in February 2012 in the case of West Country Renovations v McDowell and his guidelines at paragraph 10 which reproduced below. The key guideline is bar limited exceptions claims of less than £250,000 should be started in a County Court or High Court outside London with a TCCjudge.

With that in mind and having consulted with the other High Court judges of the TCC, the approach in the High Court in London will be as follows:
(1) Generally, claims, which are for less than £250,000, should be commenced in County Courts or other High Court centres outside London which have TCC designated judges. 
(2) However, a non-exclusive list of exceptions is as follows:
(a) Cases involving adjudications, including enforcements and arbitrations may be started in the High Court, irrespective of the financial amount involved; this is justified by the need to build up a body of case law which is consistent in these important areas of construction law business.
(b) International cases of any value will ordinarily be accepted. These will involve cases between non-resident (in the UK) parties or cases involving foreign projects or developments. This is explicable on the basis that for such cases, London is, commonly if not invariably, the first port of call in such cases, overseas parties will expect a TCC High Court judge to hear the case and the judges here are experienced in international work.
(c ) Cases involving new or difficult points of law in TCC business or which have issues of technical complexity suitable for a High Court judge.
(d) Any test case or case which will be joined with others which will be treated as test cases. Examples could be a fire supposedly caused by a washing machine, car or lorry where the value of the claim is a five- or six-figure sum but it may be joined with others in which similar points are being taken.
(e) Public procurement cases. As the TCC in London has built up an expertise and experience over the last 4 years, it is sensible if the judges in the TCC deal with this interesting, important and developing area of law and practice.
(f) Part 8 and other claims for declarations.
(g) Claims which cannot readily be dealt with effectively in a County Court or Civil Justice centre by a designated TCCjudge.
(h) Complex nuisance claims brought by a number of parties, even where the sums claimed are small.
(i) Claims for injunctions.
If there is any other good reason (even if not mentioned above) why any proceedings instituted in the TCC in London should remain in the High Court, the Court will retain the case.
Let us hope the County Courts step up to the plate!

Court counter service hours slashed to save public money!

HM Courts and Tribunals Service is set to implement permanent changes to public counter services at civil and family county courts, and district registries across England and Wales with effect from April 2012. Proposed changes affect the opening hours of public counters and the type of work they process. Changes are already planned for the North East, London and South Eastern county courts. As well as confining hours of public access to two hours a day, they are going to significantly limit the types of activity that will be carried out by their staff face to face with the public, and certain types of communication will have to go into a “drop box” or via email or other routes (which may become a black hole): general enquiries, lodging papers and issuing are for example to be excluded from the activities that will in future be dealt with face to face by court staff.

Lord Neuberger, the Master of the Rolls, will unveil a new definition of ‘proportionate’ costs later this month, Mr Justice Ramsey said yesterday. Ramsey J is standing in for Lord Justice Jackson during his treatment for cancer.

In his final report, Jackson LJ said the current definition of ‘proportionate’ in the Civil Procedure Rules should be changed and suggested how it should be done, while leaving the detail to the rule committee.

Jackson LJ said costs should only be described as ‘proportionate’ where they bore a ‘reasonable relationship’ to the sums of money involved and the complexity of the litigation, among other things.

Mr Justice Ramsey told the Westminster Legal Policy Forum on 1 May 2012 that the Civil Procedure Rules committee was holding changes required by the Jackson reforms “in escrow” for the implementation date of April 2013.

Ramsey J said there were “already some signs of a change in culture” on costs in the civil courts, but “the change has to come so litigation can be conducted at proportionate cost”.
He said proper case management was “essential” to make the Jackson reforms work, and there was now, at district judge level, a “much greater willingness and ability to provide continuity of case management”.

There was a particular problem at the Queen’s Bench Division, the judge said, where the “volume of cases is so large it is difficult to deal with case management at an early stage in each case”.
He suggested that the solution might be to apply case management only when cases had reached a certain stage.

Ramsey J highlighted the need for improvements to the pre-action protocols.
“Their whole purpose was to reduce the costs of litigation. Some of the ways they have been used has increased costs.”

On mediation, he said lawyers needed more training. “Many people say they espouse it but when it comes to resolving disputes, they avoid it. It is a major way of resolving disputes or at least narrowing the issues to those that really need to be brought to the court.”

So much for Ministry of Justice aiding electronic issue of process, it is another snip and a cut The RCJ’s Electronic Working Scheme (which serves the TCC as well as the other courts), has been closed down, temporarily they say, but with immediate effect until no one knows when. As those of us operating in the TCC have been suspecting for sometime, the system has apparently been plagued with issues to the point where HMCTS has determined that the cost of remediation would be prohibitive. A new project will be initiated through ‘government procurement channels’.

This is a very sad failure for HMCTS and for us as users of the TCC, but hopefully some significant lessons have been learnt and the next iteration of e-Working will be better designed and secure better uptake. Perhaps it will also ensure that the various IT plans outlined by Jackson LJ will be aligned with any new e-working system.

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