An undercurrent discernible from the papers this month is the potential tension between HMCTS’ and the MoJ’s planned agenda for change as against the available judicial resources.
Take a note: dramatic developments on court transcription services
The June papers reveal that HMCTS (with the MoJ) has “escalated dramatically” the timetable for procurement of new contracts for the provision of transcription services. It hopes to have new contracts in place by January 2016, so secondary legislation needs to be made by December 2015.
Against this backdrop, the CPRC was asked for its views and experiences on the benefits and disadvantages of current court transcription services (to supplement concerns it previously identified in March 2014).
Points of interest include:
- Discussion of what is an “official transcript”. The paper provided to the Committee notes that there is no official definition! The MoJ is considering whether this should be formalised, and how any verification procedures would operate (including issues such as the amount of judicial involvement that would be required).
- The fact that, in parallel, the MoJ is conducting a policy review on issues relating to the ownership and publication of court judgments.
- Other specific issues identified by the MoJ, including dissemination of judgments, operation of the current system of providing free judgments (notably through BAILII), the extent to which redaction can cause problems, and how often parties are choosing to use non-panel transcribers.
- Coulson J’s view (recorded in the minutes) that the judicial perspective he provided for the previous procurement exercise had not been factored in, and his doubt that the current contract “favours the court”. He expressed a willingness to assist with the current procurement process.
Problem areas identified by the Committee at the June meeting, included:
- Delay in obtaining transcripts: this can impact on when appeals can be heard. Suggested solutions included centralising transcript services or even “off-shoring” them to save costs and speed up the process.
- Recording techniques: two systems are currently used to record judgments – tape recording and digital – and there can be inconsistencies in the quality. Processes for ensuring that recording equipment is working currently vary from court to court, which can cause problems (for example, where a judge is sitting in an unfamiliar court).
- Review of transcripts: it was noted that it can be difficult for judges to check transcripts (often to a tight deadline) of judgments given some time ago. This is an inefficient use of judicial resources.
- Costs: currently, there is an imbalance. Some judgments are freely available (for example, through BAILII and other sources). Others are not. Previously, it had been recognised that this could impact on access to justice. Currently, no County Court judgments are published on BAILLI. It was suggested that it would be helpful if all judgments were available free of charge, but was recognised that there is a resource issue.
- Identification of cases for BAILII: it was suggested that the current guidance on when cases should be sent to BAILII is inadequate.
This is on the agenda for further discussion at the October CPRC meeting.
Evaluating early neutral evaluation (ENE)
The potential benefits of ENE were recently highlighted by Norris J in Seals and another v Williams, where he praised legal representatives for proposing that the court undertake an early neutral evaluation of a case involving a dispute under the Inheritance Act.
Perhaps it is no coincidence that, shortly afterwards, ENE came up for discussion at the June CPRC meeting. The minutes record that the Committee was asked to consider whether it was sufficient to mention ENE in specialist court guides, or whether it should also be referenced in the CPR.
Committee members raised a number of interesting points, including the fact that judges who conduct ENE may thereby rule themselves out of hearing the case. That might impact on docketing, and also means that it might be used tactically to “knock out a judge”. It was also noted that ENE is only appropriate for the “right type of case”. Other concerns included increased costs and the impact in terms of judicial resources, which are already stretched due to the impact of costs budgeting (although it was recognised that, if ENE does lead to early settlement, that will free up court time).
The minutes record that it was agreed to amend CPR 3.1(m) (presumably to add a specific reference to ENE, although the proposed wording is not set out in the papers).
New and amended gateways
Papers from the June meeting include the final report of a Chancery working group, chaired by Henderson J, that has been considering and advising the Lord Chancellor on a number of outstanding recommendations from the Lord Chancellor’s Advisory Committee on Private International Law, chaired by Lord Mance (the Mance Committee). It relates to the “gateways” for service out of the jurisdiction.
Henderson J’s report provides a very detailed outline of the background, plus detailed analysis of the six proposals in question, namely:
- A new gateway (5) (a general ground).
- A new gateway (17) (to replace the current gateway (16) on restitution claims).
- Expansion of current gateway (11) (claims about property within the jurisdiction).
- Expansion of current gateway (13) (remedies that might be obtained in proceedings for the administration of an estate of a person who dies domiciled within the jurisdiction).
- Expansion of current gateway (15) (constructive trusts).
- Addition of a new gateway (21) (claims for breach of confidence or misuse of private information).
The Chancery working group unanimously recommended that proposals one to five should be implemented by the CPRC (subject to possible alternative wording regarding proposed new gateways (5) and (17)) and that there should be a new gateway (21) for service outside the jurisdiction of claims for breach of confidence or misuse of private information (based either on wording proposed by Lord Mance in an email dated 3 June 2015 or by Arnold J in an email dated 4 June 2015). This was approved by the CRPC.
The papers also include the emails from Lord Mance and Arnold J. They (as well as the galaxy of talent that has worked on this, including leading academics such as Professor Trevor Hartley and Jonathan Harris, as well as a significant number of judges) demonstrate just how complex the issues are.
It is not clear from the papers when the amendments will take effect, but we will be monitoring developments.
Paying LiPs’ (legal) services?
During the April CPRC meeting, in the context of ongoing work regarding litigants in person, concerns were raised by HMCTS and the MoJ regarding proposed drafting for a new CPR 3.1A (litigants in person). The draft included wording that mirrored an equivalent family law provision, which had been interpreted by the Family Court as allowing the judge to require HMCTS to appoint a lawyer to put questions on behalf of a litigant in person and to pay for that lawyer. There were concerns about HMCTS’ potential exposure in a civil context.
District Judge Lethem, who has been chairing the subcommittee looking at litigants in person, reported back on the Court of Appeal’s decision in Re K and H (Children), which clarified the position and held that the court did not have the power to order HMCTS to pay for an advocate for the litigant in person. As this resolved the concerns previously raised, the Committee was asked to approve the draft rule originally placed before it at the April meeting.
The amendment was approved.
At the time of the June meeting, there had been insufficient progress for any formal report to be provided, but it was noted that HMCTS “want to move quickly”, so it was expected that more progress would be made at the CPRC meeting on 10 July (with the possibility that drafts would be available for consideration).
Interestingly, the need for clarity about the available judicial resources was noted. This is a space to watch for the future.
These are just selected examples of the topics up for discussion at the June CPRC meeting. You can view the papers in full on our website. See the resources page and the section headed “Civil Procedure Rule Committee Meetings”. The papers include approved minutes, which provide a useful summary of all of the matters discussed.