Friday, 8 September 2017

Balancing act

It’s good to see the autumn parliamentary term kick off with the government being put on the rack about the estimated £32 million in refunds that it owes to all the individuals who were unlawfully charged fees to pursue Employment Tribunal claims over the last four and a quarter years.

Seven judges of the Supreme Court delivered their unanimous judgment in UNISON v The Lord Chancellor six weeks ago.  It left the government with no option but to concede that the fees taken since Spring 2013 must be returned.

Since then all we have seen or heard have been vague mutterings about working out how and when this is going to happen.  Quite right that Shadow Justice Minister Richard Burgon should this week demand to know what’s going on. Good on the Shadow Minister also to invite an apology from the Minister of State for Courts and Justice.

Dominic Raab’s curious response is:-

We admit we got the balance wrong and took immediate steps to address this.  Of course I am happy to say sorry to anyone who was impacted by this and that is why we are putting in place measures to ensure people are compensated.”

He added that these plans are to be published “shortly”.

Well, you are right – you did get the balance wrong. “Immediate steps to address this”?  That seems to have passed me by.

What I saw was four years of many people in this profession and industry telling your government, as they had done before the fees were introduced, that it was unfair and would amount to a denial of access to justice for meritorious claims.

See Fire at will and Access denied for example.

After the new fees began to bite and the effects were as foretold, proving undoubtedly that the balance was wrong, your government took no steps to address it – other than to dismiss criticisms and fight the judicial review proceedings brought by Unison.  The Supreme Court judgment was the culmination of two applications in the High Court followed by an unsuccessful expedition to the Court of Appeal.

The truth is that the government has ignored and defied the entirely justifiable criticisms levelled at it throughout a period of approximately five years including the “consultation” (in now typical format) and taken no steps to correct its error.

Even now, this shameless administration is stalling, maintaining its clutch on individual sums of hundreds of pounds which represents significant amounts as far as each of the claimants is concerned.

It’s repugnant.

The whole episode of grotesque behaviour by our democratic government is only – and briefly so far – eclipsed by the dazzling splendour of Lord Reed’s judgment, in particular at paragraphs 67 to 69:-

67.      It may be helpful to begin by explaining briefly the importance of the rule of law, and the role of access to the courts in maintaining the rule of law. It may also be helpful to explain why the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable.

68.          At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.

69.          Access to the courts is not, therefore, of value only to the particular individuals involved. That is most obviously true of cases which establish principles of general importance. When, for example, Mrs Donoghue won her appeal to the House of Lords (Donoghue v Stevenson [1932] AC 562), the decision established that producers of consumer goods are under a duty to take care for the health and safety of the consumers of those goods: one of the most important developments in the law of this country in the 20th century. To say that it was of no value to anyone other than Mrs Donoghue and the lawyers and judges involved in the case would be absurd”.

We have reached a worrying position where the executive needs to be reminded of the purpose of a democracy and then reminded of its duty to comply with the findings of the senior judiciary.

Of course, many are saying – with some force – that there is more to come.

Lord Reed also said, with the approval of all his colleagues, that:-

People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them.  It is that knowledge which underpins everyday economic and social relations”.  [My emphasis].

This observation, and the general tenor of the judgment, exposes again the complete absurdity of the suggestion from Lord Faulks, two and a half years ago, that litigation is an Optional activity.

This was his Lordship’s justification for the hurried introduction of the huge increase in civil court fees (county and high courts) which saw the price of bringing a claim at some levels rise to 760% of what it was.

There’s no doubt that these fees represent a denial of access to justice.  Nobody can say that the levels were so wrong beforehand.  It’s all part of the government’s policy of turning courts into profit centres – if it possibly can.

QED, yet again, the ill-fated attempt by the former Lord Chancellor (sic) to hike probate court fees by, at the top end of the scale, a factor of 129!

The parliamentary commission that laid the stinger in the tracks of that juggernaut observed that Miss Trust’s planned changes “Seemed to have the hallmarks of taxes rather than fees”.

That’s exactly what it is – all of it.

That particular robbery was thwarted in its planning stages. Thanks to the heroic efforts of Unison, the ET heist has been stopped and – hopefully – the ill-gotten gains will be returned to the victims.

It’s now high time justice was done in relation to the rest of the court fee system. Time to get the balance right.

Thursday, 18 May 2017

Late charge

Charging orders have long been an important tool in the enforcement and asset recovery kit. Procedure has “evolved” over the years.

I can remember a time when these applications were governed by the provisions of the County Court Practice (aka “The Green Book”).  The remarkable feature then was that a hearing would always be listed, as a matter of routine, to decide whether the initial order nisi should be made absolute.

In the nineties (whoops!) I led a team of people dealing with enforcement work including charging orders.  Every week we would organise attendances at hearings where the debtor did not turn up and the charging order was confirmed along with fixed costs that never covered the actual expense of being prepared to deal with whatever happened.

I wrote to the chief clerk (sic) of our favourite and most-used local court suggesting that a better system would be to require the debtor to give notice if he or she intended to oppose the making of a charging order absolute.  If they did so, we would have a hearing in the usual way.

If they didn’t give the requisite notice at least seven days before the hearing, we could simply rely on a request for the charging order to be made absolute in absence.  If the debtor then turned up, having failed to give notice, the application would be either granted or adjourned.

The suggestion was quickly accepted and implementation followed in a number of other courts and was later adopted within the CPR.  It’s basically what then happened for a number of years until last April.

Now we have a new system whereby all charging order applications have to be made to the CCMCC in Salford, following the lead of the requirement that all “money claims” be issued out of that court rather than local county courts.

Now the procedure is that after an interim order is made and served within 21 days, we wait another 28 days to see if the debtor has any objections.  If by the end of “Day 49” no objection has been filed, the court will make a final order without the need for a hearing.

So, it gets better and better… or does it?

Here’s the message that we received from the CCMCC in response to the latest enquiry last week about an overdue order:-

We are aware that there is a delay in the receipt of final charging orders after “Day 49” pursuant to the centralisation of charging orders protocol.  Currently it is taking around 33 days for you to receive a final charging order from day 49.  We apologise for this delay and are doing our upmost (sic) to address the situation to bring it back in line with the protocol.  We are working closely with the judiciary bringing extra DDJs into the business to work through the increased amount of work which has built up.”

We are not aware that there is any objection in this case.  So what is it taking nearly five weeks to do?

The answer would appear to be to “rubber stamp in the absence of any objection from the debtor the interim charging order that was made perhaps as long as three months ago or longer”.

How can such a seemingly simplified system have become so wretchedly ineffective? Why does it need to go “on the shelf” (Lord Briggs, are you there?) and wait for a judge to look at it?

Charging orders couldn’t be simpler in most cases. If the judgment is unpaid and the debtor owns the property – bingo.

Like all the other changes, including the 660% rise in court fees, this is an innovation aimed at achieving greater efficiency. Actually it’s all part of a system which is costing the user more and delivering shrinking benefits.

Meanwhile I cheer, ironically, as a notice of issue of a claim form arrives. The notice itself confesses that our proceedings were received at the CCMCC on 21 April – 4 weeks ago.

As Gladstone said, justice delayed is justice denied. 

Wednesday, 1 March 2017

Imperfect storm

Insurance costs rocket as weather turns nasty...

By our underhandwriting correspondent Polly C Hikes

The motor insurance world was rocked to its foundations today by the prospect of having to pay up on claims. Insurers have announced a steep rise in the price of ‘cover’ after an unexpected breeze threatened to bring chaos to Britain’s roads.

Seconds after a 'menacing' cloud (pictured) neared the south-west coast of Cornwall underwriters warned of the need to raise prices immediately. A spokesman for the Avaricious B******s Institute wept uncontrollably as he explained to sleeping politicians that the risk of some stronger drizzle than had been anticipated this week would force a 100% increase in the cost of the average policy.

Taking a freshly peeled onion from his pocket, Mr Bruce Fibbs blamed fraudulent weather forecasting for the crisis but reassured everyone that the industry would be able to crack down on the villains.

“Fortunately, we have a direct lying (Is this right? Ed) to Whitehall and should be able to rush through legislation – sorry, I mean lobby for early action,” he consoled, bravely. “My wife, Sheila, wails every time an injured claimant is compensated in accordance with the law.”

His colleague, Mr High Heavens, quickly agreed. “This is hugely damaging to executive salaries and shareholder dividends and it’s clear that government must act. Policyholders have enjoyed the promise of a possible reduction in costs – one fine day - for long enough now and it’s time we reneged on that again as we always do”.

A spokesman for the Hatchet Insurance Co added his voice to the protests. “The problem is all these wretched accident victims trying to take our money away from us. If they think we’re going to pay compensation for their injuries and losses, they must be deluded.”

“We’ve been running a charity for years”, he sobbed. “People don’t seem to understand that these painfully low interest rates have meant that we can no longer sit on our arses watching other peoples’ money earn us a fortune. We’ve got to the point where we don’t just need to hold on to the cash for as long as possible – we need to keep it!”

“It wouldn’t be quite so bad,” he spluttered, “if we could just be left alone to deal with these misguided people direct and settle their claims fairly - with a bunch of flowers and maybe a massage for the catastrophic cases. The problem is that some of them hire lawyers who know what the claims are truly worth and then make us pay for trying to rip-off their clients. These people are deluded if they think….” (to be continued… and continued… and continued…)

But the Minister of Injustice reacted quickly and supportively to insurers’ concerns. “It’s a no-brainer”, said Miss Trust, “and I, more than anybody, recognize that”.

Unveiling a new criminal offence of being injured or killed by somebody else’s negligence, she warned that this would not become law until next week. Furthermore, there would be a consultation on the new measures later in the year.

“It’s desperately important that the rights and misfortunes of ordinary individuals are not seen to be more important than corporate profits and political favour”, she cautioned wisely.