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.

Legal Expense Insurance – Can I use my own lawyer?

For some years now it has almost been the norm that when renewing motor or house contents insurance cover additional cover has been provided for legal expense insurance.  At the outset it seemed like this was just an attempt on the part of insurance companies to charge a small premium top up and many policyholders did not even realise that they had the benefit of this cover.  

 However, in recent years, particularly with the scaling back of Legal Aid, increase in the small claims limit and increased court and Tribunal costs, ever more people are funding disputes through the courts and Employment Tribunals using their legal expense cover.  One ongoing argument has been whether the insurance company has the right to choose which lawyer should deal with the claim.  Often the policyholder wants to use their usual and locally based solicitor who they know and who is easily accessible.   

The Insurers often prefer their panel solicitors, who have negotiated significantly reduced hourly rates in exchange for a guaranteed workload, but who can often be located many miles from the policyholder.  Slow but sure policyholders appear to be winning this argument.  They are able to rely on help from Europe and in particular Article 4(1) of Council Directive 87/344/EEC which dates back to June 1987 and records the insured’s right to choose his or her own lawyer under a legal expense insurance policy.  In a recent decision the European Court of Justice has further strengthened this right by deciding that Article 4(1) does not allow the Insurer to block the appointment of the Insured’s preferred lawyer even if it would otherwise be the Insurer’s intention to deal with the matter in-house rather than by instructing an external solicitor.   

The major question mark remains whether this right on behalf of the Insured to demand the instruction of his or her own solicitor commences from the outset or only when proceedings are being issued.  It is still the case that many Insurers insist that they initially deal with matters in-house only giving the Insured the right to nominate when proceedings are commenced. Hopefully in the not too distant future the ECJ will further decide this issue in favour of the Insured.

In the meantime, don’t be persuaded by your Insurer that you cannot nominate your own solicitor to deal with a matter under your policy if you want to do so.

The MMR Vaccination – Who Decides?

A recent decision of the High Court has received considerable press attention.  It relates to two sisters aged 15 and 11, whose parents were at loggerheads as to whether or not the girls should receive the MMR vaccine.

The father, who was anxious for the vaccine to be given, eventually applied to Court for a determination of this specific issue under the provisions of the Children Act.  A particularly interesting factor was that the girls had indicated their support for their mother’s opposition to the vaccine.  A regular factor in children disputes of all kinds is the significance that the Court should place on the child’s own wishes and feelings.  Inevitably the older the child the more relevant their views will become and the more difficult for practical purposes to impose arrangements whether they be for residence, contact or specific issues of this kind against their will.

In this case, and notwithstanding that the oldest child was 15, the court decided that it was in the girls’ best interests for the vaccinations to be given. It was suggested that the girls’ stance may have been influenced by certain factors to include their mother’s concerns and worries and that such matters should not influence the Court whose paramount concern should always be the welfare of the children.  I am sure that this decision must have been very difficult for the Court to reach and it is one of those cases where there is likely to be criticism whatever decision is made.  For what it is worth, it is my view having read the more detailed report, that the decision was right, although I do speak with a predisposition to supporting the benefits of the MMR vaccine. However, where the Court feels able to ignore the clear wishes of children, particularly when they are 12 or above, it does present practical difficulties.  This is particularly the case where the decision imposed on the child may not have the support of the parent with day to day care, who is then left with the practical and emotional challenge of imposing on a reluctant child a decision which they are themselves opposed to.  It will be interesting to see whether this case has any influence on the Court when deciding more day to day disputes between parents with regard to issues such as contact where often the views of children are raised as important factors.

Post Termination Restrictions.

Another issue which I have commented on previously relates to the ongoing battle between former employers and employees in respect of contractual post termination restrictive covenants.  These covenants are included by all cautious employers in the contracts of employment of their medium and senior level employees and seek to prevent those employees from damaging the business after their departure.

Over the years the decisions of the court ebb and flow between employer and employee, but a recent decision of the Court of Appeal has once again provided comfort to employers.  In Coppage & Another v Safety Net Security Limited, the dispute related to a restriction imposed by a company on a director employee from approaching anyone who had been a customer of the employer during the employee’s employment for a period of six months following his departure. The employee argued that the restriction was excessive and unenforceable in that it should not have extended to customers he had not dealt with and nor did it limit the nature of his contact with those customers.  These arguments were in the context of an obligation on the employer to show that the restrictions in the contract were no wider than were reasonable to protect the employer’s legitimate business interests and represented a fair balance between the interests of the parties and the public.  The employee was initially ordered to pay substantial damages for breach of the covenant and his appeal has now been dismissed by the Court of Appeal.

Once again this decision highlights how important it is for employers to have in place these covenants.  It is also interesting in that in many potential disputes between employer and employee, there is an element of bluff and counter-bluff.  The employer hopes that the covenant is sufficiently well drawn to make the employee fear that if enforcement action is taken it will be enforced and is therefore dissuaded from breaking the restriction.  An employee who seeks to break a covenant will gamble that there is sufficient doubt as to its enforceability that the employer will not wish to risk the time and significant expense of attempting to enforce.  Court decisions of this kind will inevitably affect the views of both parties when considering whether it is worth taking or risking enforcement proceedings and therefore once again the balance swings slightly back to the employer.

Auto-Enrolment – The Story Continues.

Following a consultation process new regulations making amendments to the Pension Auto-Enrolment Process will take effect from 1st November 2013.

I have commented previously on auto-enrolment and the obligations this imposes on employers.  The introduction of auto-enrolment has been phased and therefore, whilst these changes will not help the many larger employers who have already implemented the previous regulations, they will slightly benefit other employers who, because of their smaller size, have not as yet grappled with the process.

In particular I am pleased to note that there has been a slight easing in the approach to opt out notices.  Notwithstanding this slight relaxation of the rules, it is essential that all employers who will soon be facing an obligation to auto-enrol their employees have taken full and detailed advice and have the procedures in place so that they are ready to go at the relevant time.

Beware - No Post Termination Employee Restrictions!

Perhaps a chink of light. 

A recent decision in the High Court (Thomson Ecology Limited & Another v APEM Limited) has provided some support for employers who face an attack from a senior employee who leaves and tries to take the business with him.  In this particular case there were no post termination restrictive covenants or any express terms limiting the employee’s use of confidential information. The employee planned to form a competing company with a similar name, registering similar domain names and attempting to employ large numbers of the employer’s staff.

The employer brought High Court proceedings including an allegation that the employee had breached his fiduciary duty (which requires an employee to act in the interests of their employer) and the duty of fidelity (which requires an employee to have regard to their employer’s interests, although this does not require the employee to place their interests behind those of the employer).

In an application for summary judgment the Court has decided that the employee did break his implied duty of fidelity by failing to inform the employer of his plans, discussing confidential information about staff salaries, arranging meetings with his work colleagues at his home to discuss the possibility of them changing employment to the new competitor and colluding with a competitor to identify and recruit members of the employer’s staff.  The Court has deferred a decision as to whether there was also a breach of his fiduciary duty. 

So potential good news for employers but the advice remains the same.  It is essential to ensure that all members of staff, and in particular senior members of staff, have in place well drafted contracts of employment which include appropriate provisions with regard to the use of confidential information and reasonable and enforceable post termination restrictions. You have been warned!

Lies, damned lies and statistics

When any official body releases performance or other statistics it is always interesting to analyse them to see whether they support or undermine the perception of how things are going. The Ministry of Justice has recently released the quarterly court statistics for April to June 2013. They include confirmation that a total of 350,843 claims were issued during the quarter, which continues a downward trend since 2008. 

This confirms my view that perhaps counter intuitively people are less likely to resort to court action when times are hard. You might think that with a squeeze on cash flow and profitability it would be attractive to become involved in extended court action to delay the eventual payment date but actually most businessmen seem to regard litigation as being a game best played when they can better afford to lose. 

Accordingly I am expecting that as we see improvement in the economy the courts will become busier! In the meantime, and notwithstanding this reduction in workload, the average time between a claim being issued and reaching trial during the quarter was 58 weeks which represents a 10% increase since 2008. 

Frankly from personal experience I am amazed that this is not worse. I hate to think the effect that any increase in cases linked to significantly more litigants in person will have. As fees constantly increase there needs to be proper investment in the system or perhaps it is time to privatise!