More County Court issues

I have previously referred to the frustration felt by many legal professionals and their clients at the current economies being driven in the civil court system, notwithstanding the fact that the civil courts continue to operate at profit and should not be expected to subsidize other parts of the system.

 

The latest incident relates to a substantial civil matter in which I am involved which is proceeding in an Essex County Court.  Some months ago a timetable was fixed progressing the case to a final trial next year and including a direction requiring both parties to file dates of availability with the court by early November to enable the final two day trial date to be fixed between late March and mid May next year.  In more complex actions where there is expert evidence it is important to have a trial date in the diary as soon as possible to ensure the availability of all key witnesses, experts and barristers, even though this still gives no guarantee that either in the days prior to the listed hearing or even on occasions when their parties’ legal teams and experts arrive at court, it will not be bounced off to another day on the basis of lack of judicial resources.  However, in this particular case I have now received a letter from the court service in response to my dates of availability which states:

 

“The Multi Track Centre are unable to list at present, as dates to avoid take the trial window into the next financial year.  We will write to the parties requesting up to date dates to avoid when the itineraries from April onwards are released”.

 

The first question that arises is why the court is making a directions order requiring parties to provide dates of non-availability to be received a time when no actual date can be allocated.  However, more significantly I find it difficult to believe that five months before the end of the financial year, the court is unable to confirm at least the minimum number of Trial Judges which will be available to deal with contested cases from April onwards enabling final trial dates to be fixed.  Is this another worrying sign that the system is grinding to a halt?

 

 

Holiday pay - another challenge for employers

More fun and games following the recent decision of the Employment Appeal Tribunal in Bear Scotland Ltd v Fulton & Others. This well reported decision concerns the potential effect of overtime on the calculation of holiday pay. In particular the EAT decided that in circumstances where an employer is not required to offer overtime, but when offered the employee is required to accept it, the salary from that overtime should be reflected in the level of holiday pay received by the employee. The EAT further decided that this does not apply to unpaid overtime or to overtime which the employee is at liberty to refuse.

 A further twist is that this decision applies only to the first 4 weeks of annual leave and not any further or additional holiday. This is because the current right to a total full time holiday entitlement of 28 days derives from 2 separate provisions of which only one falls within this decision. That’s all nice and clear then!

The decision also raises questions with regard to bonuses and commission payments. It is unlikely that holiday absence would have any effect on a bonus calculation but adopting the same approach it is difficult to see how commission would not be caught, although a decision on this point has not yet been made.

The Employment Appeal Tribunal has limited retrospective claims by saying that there is a 3 month limit in making a claim although care needs to be taken if there is a series of deductions (which in most cases will be inevitable) as there will then need to be a break of more than 3 months to break the chain.

The EAT has already given leave to appeal and it is difficult to imagine that this will not go further in addition to which there remains every possibility of intervention by the Government.

 It is difficult to believe that this decision will not give further ammunition to those anti EEC’ers as this all stems from the Working Time Directive. Whilst there are some who will argue that this ensures a fairer deal for employees others will use it as a further example of European driven red tape harming business and economic growth. Unless followed by a similar decision on commission I suspect this is not as much of a problem as it has been made out to be but clearly the saga has got some way to go yet.

Divorce funding

Inevitably a major concern for clients about to embark on divorce and related financial proceedings is how to fund their legal expenses.

 

For divorce lawyers this should always be at the forefront of our minds too – and not just because we want to get paid! Divorce proceedings can be stressful enough at the best of times but worries about costs do not help. The key is to try to keep the costs at as reasonable level as possible but also to ensure that the client is kept informed as to the costs they have incurred, the costs which are being incurred and the likely level of the final bill. The problem is that final estimates can be difficult to provide because disputes can follow so many different paths.

 

There are various funding arrangements available. Some clients have the funds or have assets that can be cashed to provide the necessary fighting fund. Occasionally family members or friends are prepared to loan money for this purpose but beware, as the court can sometimes be sceptical as to whether these loans are truly recoverable. For others loans can be obtained from banks or specialist litigation funders although it is important to avoid too high interest rates. In some cases the lawyer will be prepared to enter into a Sears Tooth Agreement which involves the lawyer deferring charges until the conclusion of the case but taking a charge over the eventual settlement to ensure repayment.

 

A further important option is that since April 2013 parties have been able to apply to court for a Legal Services Order. This enables the court to order a more financially secure spouse to make a payment or payments to the less well off spouse to fund their legal services. It is an important weapon in these post legal aid days to try to ensure that the parties are on a more level playing field so far as costs are concerned, but it is perhaps surprising that these orders are not slightly easier to obtain. A number of hurdles have to be overcome to include satisfying the court that appropriate legal services would not otherwise be available and that it is not possible for the applicant to obtain a loan or the benefit of a Sears Tooth agreement. If assets are available one would have thought that they would be better utilised in suitable cases rather than forcing a spouse to take out a loan with interest liability which will only further deplete the joint assets available for distribution. Additionally whilst the court continues to drown under the flood of litigants in person this must represent a simple way to reduce the problem.  

 

In any event for some parties a Legal Services Order is certainly an option to consider.

County Courts - The erosion of customer service.

I am currently dealing with a matrimonial case in the Family Court at Canterbury and tucked in with the latest order was a circular which said as follows:

 

“Please note that from 6^th May 2014 the court counter will shut.  You may however book an appointment to see a member of staff by dialling 01227 819267.  However, appointments will only be given for:- Applications for non-molestations and applications relating to removal or abduction of children.  If your enquiry does not fit the above, then please telephone the Court on 01227 819200 or, alternatively, email family@canterbury.countycourt.gsi.gov.uk.  There is a secure letterbox for dropping documents off at the front of the building (outside).  Appointments can be made Monday to Friday between 10am and 2pm.  Appointments will NOT be given for:- paying a fee, case specific enquiries, general enquiries, lodgement of documents, issuing applications, issuing divorce proceedings, issuing private law proceedings and collecting forms and orders”.

 

This mirrors similar arrangements which have been implemented by County Courts across the country but once again made me ponder whether there is any other service industry (which is what the County Court system is!) which operates at a profit but which provides such limited support to users.  I appreciate that staff cutbacks have made it difficult to maintain adequate counter staff, but is this level of service satisfactory.  In my previous item I commented on the challenge posed by litigants in person.  It seems to me unsatisfactory that they are expected to complete often complex forms and then are not able to hand deliver them so that they can be checked by court staff to ensure that everything is in order rather than waiting for the forms to be eventually returned by post if there is a problem.  For firms like ours we are regularly  required to issue on an urgent basis protective proceedings either where clients are seeking a lease extension under the Leasehold Reform Housing & Urban Development Act 1993 or a new business tenancy under the Landlord & Tenant Act 1954 where significant rights can be lost if the prescribed deadline for the issue of protective proceedings is missed.  It is inevitable that on occasions we receive instructions to issue at short notice and whereas historically we would arrange for such applications to be hand delivered so that the court staff could check and issue the proceedings while we waited, this option is no longer available.  We have to simply deliver the documentation which may need to be dealt with on that day and then hope that everything is in order.  It means ensuring that the staff submitting these applications are on top of the relevant rules to avoid problems occurring is very important.  It still leaves the question as to why regular users of a service industry of this kind cannot expect the service to reflect their reasonable needs.  I would also query why the timescale for appointments on a daily basis has to be so limited bearing in mind the very small number of applications which will now result in an appointment being allocated.  The staff are after all in the building.  Is it really so difficult to ensure that a time is allocated which is convenient to the users paying for the service?  In the long term time and costs can be saved by ensuring that reasonable and adequate support is available and easily accessible to litigants in person as well as assisting lawyers who continue to endeavour to deal with litigation as efficiently and economically as possible.

Litigants in Person

There is nothing like party political conference season to encourage our leading politicians to make eye catching policy announcements, often without supporting details, leaving the rest of us to ponder what the practical ramifications will be. I see that Lib Dem Justice Minister Simon Hughes has announced that we can shortly expect the Government to announce plans to tackle the issues raised by the growing number of litigants in person. I have commented in the past on the major effects that this is having as they attempt to come to grips with a system which can be complex and confusing – and that is just the court system itself never mind the underlying laws that govern the decision making process. This is at a time when the courts are subject to ever further cuts including making staff and counter/telephone support ever more limited and often nonexistent and with a constant drift to centralise the court buildings making them less accessible for service users. However whilst litigants in person may need improved support my concern remains for those who instruct solicitors to present their cases properly and promptly but face litigants in person against them. Will this issue also be addressed? Why should my clients face a larger bill than would otherwise be the case because litigants in person are clogging the system, extending waiting times and hearing lengths and missing clear deadlines apparently without sanction. I also fail to see why litigants who employ a lawyer should have greater responsibility for preparing bundles etc simply because the other side has decided to go it alone. It may be that this is desirable and on occasions the offer will be made by the lawyer but it is now often becoming assumed by the court. I have recently been fighting a case in an outer London county court where the other side is in acting in person and quite understandably is struggling. However the sums in dispute are significant. We are following the rules but our opponent is not but is constantly being allowed further chances by the Judges resulting in additional and often irrecoverable costs being incurred. I have no problem with Judges sympathising with the plight of litigants in person but what about some sympathy for those on the other side and action to protect them from the costs ramifications of litigants in person.

Employment rights for illegal workers

A recent decision of the Supreme Court has received coverage in the media. The case involved a claim for race discrimination which was being pursued by an overseas employee who had no right to work in the UK. Initially the Court of Appeal decided that the claim must fail as it was based on a contract of employment which was itself illegal. 

However the Supreme Court has overturned this decision based on more wide spread policy considerations and potentially the issue of human trafficking. It is one of these situations where it is easy to see why the court has acted in the way it has but it leaves a sense of unease particularly if subsequently applied in less blatant circumstances. It must be wrong for any employer to act in an unreasonable manner to their employees and there does seem evidence that those who are working here illegally are, for obvious reasons, particularly susceptible to more extreme behaviour of this kind. 

However aiding the victims of human trafficking should not in my view be the role of Employment Tribunals and this move seems to be an acknowledgement of the Government’s failure to address the underlying problem and an attempt by the Court to intervene by a less appropriate route. 

As a general rule is it reasonable to expect illegal workers to have rights in some areas equivalent to those who are legally working? With the exception of those held against their will those who choose to work here without proper authorisation should not be able to seek redress or compensation through our employment law and appropriate action should be taken against both employers and employees in this situation.

Obesity discrimination?

As the debate on continued membership of the ECC hots up and the possibility of renegotiation rises it is always interesting to keep an eye on the activities of the European Court of Justice and its attempts to define and extend the effect of euro law. For many it is euro legislation in areas such as employment law which epitomises the worst over centralisation and red tape that now  seem to surround Europe and which are a long way from the common market ideal that we signed up to. In a recent decision the Court has found that whilst it is not possible to discriminate on the grounds of obesity it is possible that severe obesity might fall within the definition of "disability" if it limits a worker from full and effective participation in their professional life on an equal basis with other workers.

Disciplinary Appeals

In an interesting decision the Court of Appeal has recently upheld the decision of the High Court to the effect that unless the disciplinary procedure in place allows it, an employer cannot increase the penalty imposed on an employee following a disciplinary appeal. I am not convinced that the increase of a penalty in such circumstances is ever a great idea and it does run contrary to the ACAS guidelines on disciplinary procedures but if this is a weapon that employers want in their armoury it is clearly important that they have a written disciplinary procedure which makes this completely clear.

Employment Tribunal Claims Down

Latest figures reveal that the number of new employment claims being started has very significantly reduced.  Now some will argue that this is a good thing and that the pendulum had swung too much in favour of the employee resulting in claims being pursued in almost any circumstances and leaving employers at risk of at worst significant awards and at best substantial costs to defend ill conceived claims. 

The argument was that the risk of these claims was deterring employers from increasing their workforce and was depressing the job market.  There may be some merit in this view; however, there is now a growing feeling that things have swung back too far the other way. The extension of time before the right to a standard unfair dismissal claim can be pursued has been increased from one year to two. 

In addition we have the ponderously slow speed at which some Tribunal offices progress claims which can deter even the most enthusiastic claimant and more importantly the introduction of significant Tribunal fees which make many claims simply beyond the financial reach of many. 

Tribunals were originally intended to provide a low cost, user friendly, jargon free structure to administer fast and understandable justice without the pomp and procedure which sometimes has accompanied the more formal court process.  This is still the case in some areas of their work but due to underfunding and overcharging, Employment Tribunals appear to have lost their way.

If anything is an indictment of the current position it is that many employees with employment claims are now choosing to pursue them through the County Court small claim procedure rather than in the Tribunal because the fees are considerably cheaper.  It would appear that the relationship between Courts and Tribunals has reversed and if the Tribunal system can no longer deliver the benefits which it was set up to achieve, then something has gone very seriously wrong and needs to be addressed.

Local serach delays

As my formal connection with Southend Borough Council has now ended I feel able to criticise the authority’s current performance on local searches. A combination of a delay of some weeks to return results and a refusal to return by e mail suggests a slight “luddite” tendency and compares unfavourably with Castle Point next door which returns searches within a few days and has come to grips with electronic communication! So come on SBC pull your socks up. There are enough aggravations in the Conveyancing process as it is without this further delay.

Flexible working – the growing challenge for employers

One of the provisions of The Children and Families Act 2014 will potentially have a significant effect on employers as it extends the right to request flexible working to all employees with at least 26 weeks' continuous service.

The new rules will come into force at the end of this month (June 2014) and will impose on employers an obligation to deal with requests in a reasonable manner and within a three-month decision period. Flexible working can pose massive operational challenges for employers. This further extension of access to this right will be unwelcome for many but as previously it does not mean that such requests cannot be refused.

What it does mean is that it is essential that employers have in place a process to ensure that any requests received are dealt with efficiently and within the prescribed time limit, and that proper and justifiable reasons are given for any refusal. As with so much in employment law employers who follow sensible and established procedures significantly reduce their risks of successful claims being pursued.

Mediation – well maybe but not always

Now don’t get me wrong I am a great supporter of the view that disputes should be resolved as quickly, economically and fairly as possible but am I alone in starting to become distinctly uneasy about this growing infatuation with mediation.

Now in many cases, particularly where the claims are potentially uneconomic to pursue and the outcome uncertain, a well conducted mediation is the ideal outcome. However there are also cases where the position of one party is strong and the problem with mediation is that there is an expectation of compromise and concession which towards the end of a long mediation can become overbearing.

If a party has a very strong claim and does not want to compromise then it should be there right to go to court if they wish and pressure and potential costs penalties for not mediating are undermining that basic right. After all if a party pursues a claim unreasonably there are plenty of opportunities to increase their cost risk using the existing court rules.

So let’s encourage effective mediation with appropriate cases but then ensure that the court system works quickly to ensure that cases which are not suited to mediation can be determine without delay and as cost effectively as possible.

In the meantime for cases that are well suited to mediation I would recommend my colleague Susan Blake who is establishing a strong reputation as an effective and approachable mediator.

Time limit compliance – a step in the right direction

I was pleased to note that in the recent case of Groarke v Fontaine the High Court has shown some common sense with regard to time limits and the need to show some flexibility in the interests of fairness, balance and the proper administration of justice.

An appeal has been allowed against a refusal of a District Judge to allow an amendment. The reason for the original decision appears to have been to punish one of the parties for earlier breaches of orders and directions for which no sanctions were imposed.

Quite correctly in my view the High Court Judge adopted a more balanced stance. It hopefully represents what will be a continuing trend to undermine the hard line decision in Mitchell v News Group Newspapers which attempts to ensure that any failure to comply with prescribed time limits results in Armageddon for the relevant party.

Ignoring the irony of the Court imposing this level of sanction on the parties at a time when the administration of the system appears to have fallen into chaos it also fails to acknowledge that this profit generating “service” should be receptive to the wishes of the parties and to allow sufficient flexibility to ensure that a fair and just outcome is of paramount concern.

Small claims without hearings - beware!

One of the problems that has resulted from the removal of civil legal aid and the increase in the value of civil small claims where legal costs are irrecoverable is that the number of litigants in person has grown massively. 

Some people faced with the challenge of preparing and presenting their case without legal support do remarkably well however unsurprisingly many others struggle to cope with often complicated processes and points of law. In the meantime hearings get longer and the system struggles to cope. 

One approach increasingly apparent in Southend County Court is a direction for the matter to be dealt with on the basis of written submissions and documents rather than oral evidence. I do not criticise the courts for trying to streamline the system and increase the speed of justice but this does raise yet another risk to the quality of justice in this current cost cutting era. 

I have recently been consulted by a party who was directed that his case would be dealt with in this way and had no understanding that he was fully entitled to object if he wished to do so. Evidence, to include expert evidence, was then lodged and a decision was then issued. It rejected his claim on the basis that the 2 experts disagreed and as it was for the Claimant to prove his case the claim was dismissed. 

In my opinion the decision was a poor one. It is inevitable in a contested case where both sides rely on expert evidence that there will be disagreement but surely that does not mean that as a result the Claimant should lose. If so it makes a defence strategy on most claims reasonable straightforward! Of more concern the Judge gave no indication that he/she preferred the evidence of the Defendant expert. It was simply that there was disagreement. 

The client tried to seek a hearing but this was rejected as he has “consented” to the matter being dealt with on paper. He didn’t want the cost and further aggravation of an appeal but felt badly let down by the system and did not realise that he had the right to object. The rules have previously indicated that parties must make a clear election to avoid a personal hearing and it raises some fundamental human rights issues. 

The court has in more recent cases changed its order stressing the parties right to object to the order for a paper hearing however I would question whether the average litigant in person realises they are making this election. I also disagree that it is right to remove formal hearings and the ability to test evidence in person. If this is going to continue than I wonder if we need judges at all – I am sure that a software package could be developed enabling the parties to feed in all relevant information and receive a decision based on set criteria almost instantaneously. 

Call me old fashioned but I believe that oral hearings are a key element of our long established system and we move away from them at our peril!

The civil courts and the need for better customer service

Sometimes it is easy to forget that even ignoring the most recent hikes in court fees the Civil Court system in England & Wales operates at a profit. 

However for a publically run service which should presumably operate for the benefit of its users it appears to have lost its way. As fees go up but expenditure on staff and infrastructure goes down the quality of service to the customer continues to deteriorate. 

This ranges from annoyances like the inability to speak to local court staff by telephone but instead being directed to the dreaded local call centre and the need to make a prior appointment to attend the court office to lodge or issue urgent documents, to more underlying problems to include ever lengthening delays for hearings and the ridiculous over listing which means that cases are regularly removed from the list at short notice or even on the day because of the lack of an available judge. 

In a complex case earlier this year which was listed for 3 full days we attended on the first day to be told that due to over listing we couldn’t proceed and were eventually offered a fresh date 3 months later. It even took until lunchtime to be released. So all the court documents had been prepared, barristers instructed, witnesses called to court and experts booked all to be cancelled at massive cost to the clients. 

If only this was an isolated example but it is not. Whilst we are lectured by senior judges and legislators as to the need to reduce and control the cost of litigation there seems remarkable lack of concern or action about this hopeless waste of money which is within the control of the court service. 

It really is time for the civil court service to remember that it is supposed to be a “service” to its users and start to develop systems which reflect this. In the private sector this situation would simply not be tolerated.