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[ccje2004/docs/CCJE(2004)8e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
QUESTIONNAIRE ON MANAGEMENT OF CASES,
JUDES’ ROLE IN THE PROCEEDINGS,
AND USE OF ALTERNATIVE DISPUTE SETTLEMENT METHODS
Reply submitted
by
the delegation of United Kingdom
(The answers follow the paragraph numbering in the Questionnaire.)
1. The Courts are operated by the Court Service (a branch of the Department of Constitutional Affairs, formerly the Lord Chancellor’s Department). The Court Service issues to potential and actual litigants written and oral guidance, primarily through the various court offices) about how to proceed. The Court Service website has a great deal of information about issuing and pursuing proceedings, or being involved in them as a witness, an accused or a juror. The publicly funded Citizens’ Advice Bureau also fulfils a useful service in advising and representing litigants, and has its own valuable website.
2. To some extent, yes. Litigants in person (i.e. appearing for themselves without a lawyer) are permissible and have the right of audience at every level of the UK system. Impoverished litigants can obtain relief from court fees.
Claims are allocated to one of three “tracks” – small, fast and multi, according to their size and to some extent complexity. “Small claims” are basically claims for up to £5,000 (with some restrictions where the claim includes damages for personal injuries or landlord’s repairs). Procedures are highly simplified, with short very time limits and the costs recoverable by a winning party from a losing party are very limited. Fast track cases also attract a simplified and speedy procedure, with slightly more generous costs provisions (up £350 for claims up to £3,000, up to £500 for claims between £3,000 and £10,000 and up to £750 for claims over £10,000). Multi-track cases are more complex, and the indemnity in respect of costs payable by a losing party awarded can be much higher. Lawyers’ costs are probably the UK system’s biggest unresolved problem.
3. Legal aid is generally available, subject to a means test, in criminal cases. In civil cases, the legal aid system is administered by the Legal Services Commission, with a regional offices responsible for granting it, their decisions on eligibility being subject to review by funding review and costs committees. The cost of providing legal aid falls however on (and became expensive to the point where it has undermined the finances of) the Lord Chancellor’s Department, now the Department of Constitutional Affairs. As a result, the availability of legal aid in many civil cases has been sharply curtailed and alternative means of funding encouraged (e.g. conditional fees and legal costs insurance). The criteria for eligibility for “Legal Help” and “Help at Court” (basically everything short of detailed investigation and litigation) are now capital of less than £3,000 combined with income which is less than £2,288 in terms of gross income and less than £621 in terms of disposable income per month. The criteria for litigation (other than before an immigration adjudicator or appeal tribunal) are slightly more generous. Any sums recovered from the other side (other than by way of maintenance) go first to satisfy sums paid out in legal aid.
4. Legal expenses insurance can be sought on the market to cover (a) costs ordered to be paid to the other side, if the other side wins and/or (b) one’s own costs, if one loses. It is available for certain claims under some regular householders’ insurance policies. Alternatively, it can be sought on an individual case basis – but whether it will be available and at what price depends on the nature of the claim/defence and its prospects.
The alternative funding means in respect of one’s own costs is a conditional fee arrangement – a contract allowed by legislation under which the lawyers get nothing if they lose, but can recover up to 200% of the normal fee, if they win. This gives the lawyers an interest in the litigation, which many criticise as unhealthy. It also gives them every incentive to assess as high a “normal” fee as possible, although of course the court has power to review any figure they agree with their client, in order to determine whether it is reasonable.
1. Yes. Basically, United Kingdom judges are able to concentrate on judicial functions, although in recent years a number of judges have become increasingly involved in liaising with the Court Service.
2. There are some small arbitration schemes. Mediation is the other new system, which has gained considerable impetus in recent years.
3. Yes. This subject is examined statistically as well as by practical observation. A Unified Court Administration has been introduced this Spring, bringing all courts (i.e. Magistrates Courts, County and Crown Courts and High Court and Court of Appeal) under the Court Service. The aim will be to combine and consolidate courts in single buildings, where appropriate. The judiciary has been involved in the discussions, both locally and centrally. A judge sits both on the Court Service National Property Board, and on the Court Service Central Executive Board.
4. Only a limited role in direct administration. But, increasingly, judges are involved in consultations and discussions on these subjects. There is still considerable room, however, for further progress in this area.
C. QUALITY OF JUSTICE AND ITS ASSESSMENT: QUANTITIVE STATISTICAL DATA; MONITORING PROCEDURES
1. Not really. Appeal Courts soon come to know of judges whose standards seem to be falling. Such judges also get to know because all judges are sent copies of judgments on appeals from them, and in less formal ways (the local presiding High Court judge might for example speak to a judge about obvious failures in his or her performance). The media from time to time investigate and report on the perceived quality of various judges, e.g. commercial or Crown Court, usually based on court users’ reports and record on appeal.
There are some other indicators of efficiency (such as throughput of cases or time taken to issue judgments) but none related to the quality of the judgment produced.
2. See 1.
3. Courts have “target times” within which to handle cases or appeals. In civil cases, applications for permissions to appeal should be disposed of within a few months, and appeals within a year. Annex C below is the current direction showing the detailed target dates for different types of case. Judgments on appeal should ordinarily be produced within 3 months (in practice they are usually much quicker) In criminal cases the target times for dealing with applications for leave to appeal are 5 to 6 weeks in respect of applications relating to sentence and 3 to 4 months in respect of applications relating to conviction. The target times for the total time elapsing until disposal of appeals (i.e. including both the time taken before and the time taken after leave to appeal is given) are 5 months (sentence) and 8 months (conviction). Complex cases can of course take longer. Very urgent cases can take almost no time to go through the system from bottom to top.
a) in general
1. There are a number of schemes, the main private one being run by CEDR (Centre for Dispute Resolution). There are court sponsored schemes, e.g. the Central London County Court scheme and the Court of Appeal scheme. Costs have to be borne by the parties, but, if mediation is undertaken to resolve litigation, the costs may form parrt of the litigation costs. Legal aid may also cover mediation costs. More generally, see also the paper on ADR annexed as A.
2. No.
3. Yes.
4. (First question) Yes. (Second question) No.
5. Refusal even to try ADR may be taken into account in litigation costs orders. But refusal to accept an amicable settlement proposed during mediation is a confidential matter, into which the court cannot go. There are, however, ordinary litigation procedures whereby a party may offer to pay a sum on account of the claim, or to accept a lesser sum than he is claiming, and the court may after deciding the case take into account in various ways (in particular in costs and interest orders) the other side’s refusal to accept such an offer, if the other side has not done better than the offer.
b) in court ADR
1. A judge may order parties to use their best endeavours to mediate their dispute, even without their consent. Article 6 of the Human Rights Convention means, however, that this can only involve a temporary stay - the judge cannot absolutely refuse to hear their case, if they refuse mediation.
The judge may not himself serve as mediator in UK practice. He may, if parties request, give a assessment of the merits on the basis of the material before him e.g. without hearing witnesses, but then he can no longer try the case.
2. CEDR has established extensive training course for mediators, and codes of conduct.
3. A binding agreement is a binding agreement, whether it is the result of mediation or any other process of negotiation leading to settlement. It can be made into a court order.
c) out of court ADR
1. They are no doubt subject to ordinary principles governing the making of any contract. In other words, if induced by fraud or simple misrepresentation, or (in rare cases) by common mistake or by the exercise of undue influence, an agreement concluded in out of court mediation could be set aside.
d) ADR in administrative law disputes
1. This is a relatively new area, just developing. An administrative proceeding would not be necessary to conclude such a settlement.
e) criminal law and ADR
Basically, this does not exist. The Crown Prosecution Service may (subject to judicial approval) agree to accept a plea of guilty to a lesser offence. A judge may before a trial indicate that he would (or would not) pass a custodial sentence, whether the defendant pleaded guilty or entered a plea of not guilty but was found guilty by the jury. But a judge may NOT say that, if the defendant pleads not guilty and is found guilty he will go to prison, whereas if he pleads guilty the judge will not send him to prison. All defendants know however in practice (if only because their lawyer will tell them) that a plea, especially an early plea, of guilty is going to attract a less severe sentence (even if the reduction is only in the length of sentence, by usually about 20% - 30%). (Rendering assistance about other offending by other people also attracts a diascount.)
E. CASE MANAGEMENT
a) in general
1. English litigation is generally quick. Small claims take a few months. Fast track somewhat longer. Multi-track can take much longer, depending on complexity, but even the most complex commercial cases should be tried within a maximum of say 2 years after commencement. Urgent cases will be tried quicker.
2. Yes, very extensive powers under the new Civil Procedure Rules 1998 as amended.
3. Yes, save of course on appeals.
b) in civil disputes
Please see the paper annexed below as B, delivered at last November’s CCJE conference, which covers most of the points.
As to 4.2, a summary judgment has the force of res judicata. An order for interim payment (which is made on the basis of a provisional assessment of the likelihood of success) does not.
As to 4.3, the answer is yes.
As to 10, most appeals require permission (or “leave” – the same thing), given either by the court below or by the appellate court. To go to the Court of Appeal, the test is whether there is a real prospect of success or some other reason (e.g. an important point of principle or practice or some other reason). To go to the House of Lords, the case must be sufficiently significant – the Lords only decide about 100 case each year. The system is very successful in reducing the work-load, and eliminating hopeless appeals, although of course it involves some court time to operate. Initially, permission is sought and granted or refused on paper. There is a right to a (brief) oral hearing (usually only before the judge who dealt with the matter on paper, though (s)he may direct that another judge or even judges sit with him/her.
c) in criminal matters
1 and 2. Various procedures have been introduced to make the system more efficient, e.g. (a) plea and directions hearings, when a judge will set timetables and make orders for the progress of cases to trial, and when a defendant may indicate whether he pleads guilty or not guilty at an early stage, (b) the requirement that the defence state its case and produce statements of any expert evidence in advance.
3. (i) Whether there is sufficient evidence to prosecute (i.e. offering a reasonable prospect of a conviction) is a matter for the Crown Prosecution Service (“CPS”) to assess. In some (e.g. minor) cases, the police or the CPS or Attorney General may also decide that the public interest would not be served by a prosecution. The police may, instead of taking a matter further, administer a caution to a person who admits guilt. Such a caution will be recorded and may later be taken into account for certain purposes, e.g sentencing for a later offence.
(ii) and (iii) Certain minor offences are decriminalised, e.g. parking offences and speeding offences carry fixed fines, provided that these are paid within a certain number of days, and some revenue offences carry penalties (although still criminal in the sense of article 6 of the Human Rights Convention).
(v) Such a procedure exists. An early plea dispenses with any need for witnesses or a trial (and lead to a discounted sentence).
(viii) Not applicable in the jury system. The judge’s summing up is recorded (and will be transcribed whenever there is an application for leave to appeal). The jury’s verdict is always in unreasoned, general terms.
4. The juror are the judges of fact, in any issue of guilt or innocence. The judge directs the jury on law in his/her summing up, and passes sentence (giving brief reasons) on defendants who plead guilty or are convicted by the jury. The judge may also hear evidence and oral argument in the absence of the jury on such questions as for example (a) the propriety of the Crown’s conduct in bringing the prosecution (e.g. if there has been great delay, or if the Crown has obtained the presence of the defendant within the jurisdiction by a trick), (b) the admissibility of evidence or of particular questions put to witnesses, and (c) whether the Crown evidence discloses a sufficient case to go before the jury.
ANNEX A
(ADR paper)
ALTERNATIVE DISPUTE RESOLUTION
THE ENGLISH POSITION
(Lord Justice Mance)
“(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case[3]; ….
The court also has specific powers to adjourn a hearing and stay the whole or part of any proceedings generally or until a specific date or event (CPR 3.1(2)(b)) and stay proceedings to allow for settlement of the case (CPR 26.4).
22 October 2003
ANNEX B
(CASE MANAGEMENT PAPER)
(Strasbourg, 24-25 November 2003)
INTRODUCTORY SESSION
(1) |
“1.4(1)The court must further the overriding objective by actively managing cases. |
(2) |
(2) Active case management includes – |
|
(a) |
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings; |
|
(b) |
(b) identifying the issues at an early stage; |
|
(c) |
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others; |
|
(d) |
(d) deciding the order in which issues are to be resolved; |
|
(e) |
(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure; |
|
(f) |
(f) helping the parties to settle the whole or part of the case; |
|
(g) |
(g) fixing timetables or otherwise controlling the progress of the case; |
|
(h) |
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it; |
|
(i) |
(i) dealing with as many aspects of the case as it can on the same occasion; |
|
(j) |
(j) dealing with the case without the parties needing to attend at court; |
|
(k) |
(k) making use of technology; and |
|
(l) |
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.” |
(i) whether they wish to have a one month stay to attempt to settle the case;
(ii) whether they consider that the case is most suitable for the small claims track, fast track or multi-track or for a specialist list; whether they have complied with any pre-action protocol;
(iii) whether they intend to issue an application for summary judgment;
(iv) whether they intend to apply for the court’s permission to issue a claim against someone not yet a party to the proceedings;
(v) what witnesses of fact they intend to call at the hearing and which facts they will deal with;
(vi) whether there is any reason why the case needs to be heard at a particular court;
(vii) the estimated length of trial and whether the parties intend to be represented by solicitors or counsel;
(viii) an estimate of costs (both legal and overall costs including disbursements).
“the control of proceedings rests with the judge and not with the plaintiffs. An expectation that the trial would proceed to a conclusion upon the evidence to be adduced is not a legitimate expectation. The only legitimate expectation of any plaintiff is to receive justice”
The court’s ability to identify a separate issue of fact or law and to determine it in advance of any other is closely linked with the need to define the issues at as early a stage and in a concise and precise a way as possible. There is of course a risk that the separate issue may be separately appealed and that the overall progress of the litigation may in the end be delayed. The magnitude of this risk depends on the speed of the appellate system – which is a different topic. But it is a risk that has to be taken into account, and balanced against the potential advantages. In the English experience, interlocutory judgments have gained a very real importance, but especially in the larger commercial cases, of which London sees many.
Disclosure of documents (formerly known as discovery). As is well known, the English requirements obliging each party to make disclosure of relevant documents (that is documents on which he relies in support of his contentions or which materially affect his case or support the other party’s case) is considerably more extensive than the continental European, but is also much less vexatious and expensive than the United States model. But the CPR aimed at a “culture change”, seeking to limit the extent of discovery at least in the normal case, and to make it more proportionate. Nevertheless, the requirement to disclose unfavourable as well as favourable documents often proves a considerable incentive to settlement - either before or after disclosure has had to be made!
Summary. Inevitably, I have, as I said, had to look at the position through the eyes of my own jurisdiction. But I have spent time with German judges, and seen how they address their duty to resolve proceedings. This is a duty which has been interpreted in a similar sense to the modern English rules. It requires them to consider and encourage the possibility of settlement, wherever this seems appropriate and without imperilling their position as impartial arbiters of the disputes before them, if no settlement is reached. I believe that judges everywhere have now to recognise that litigation to trial is often wasteful and avoidable, although sometimes of course very necessary. It is our duty to frame our procedures and our management of cases with that in the forefront of our minds. I believe that this conference will give us many mutually beneficial insights into the possibilities.
ANNEX C
TARGET DATES FOR CIVIL APPEALS
Dates effective from 1 March 2003
PRACTICE NOTE
COURT OF APPEAL, CIVIL DIVISION
LISTING WINDOWS AND HEAR-BY DATES
1. The hear-by dates for different classes of appeal were last revised and published in the Court of Appeal’s consolidated Practice Direction [1999] 1 WLR 1027 which has since been superseded by CPR Part 52 and its supplemental Practice Direction. In my review of the legal year 1999/2000 I announced that the hear-by dates for certain appeals, which had previously stood at 15 months would, from November 2000, be reduced to 12 months. The table below sets out further reductions in hear-by dates reflecting the very substantial progress made by the Court in improving the service it offers litigants. The longest hear-by date will now be 10 months and most considerably less. These dates will apply to all appeals filed on or after 1st October 2001.
2. In the exercise of its case management responsibilities the Court will strive to ensure that appeals are generally heard within their listing windows, many of which have now been enlarged. Applications for an expedited hearing will continue to be determined by a single Lord Justice or the Master in accordance with the principles set out in Unilever PLC v Chefaro Proprietaries Ltd (Practice Note) [1995] 1 WLR 243. Applications for permission for a hearing date to be fixed beyond a hear-by date will likewise be determined by a single Lord Justice or the Master, but will be granted only for the most compelling reasons.
TYPE OF APPEAL |
Listing Window |
||||||
PTA ShadowTarget Date |
Start Window for Appeal |
Hear-By Date, End Window for Appeal |
|||||
Family |
Child cases |
4 weeks |
3 mths |
4 mths |
|||
Financial and other |
6 weeks |
5 mths |
9 mths |
||||
Administrative Court Cases |
Immigration Appeals, Interlocutory and Education appeals |
8 weeks |
4 mths |
6 mths |
|||
Other Administrative Court final orders |
8 weeks |
5 mths |
8 mths |
||||
High Court |
CPR, Part 24 |
6 weeks |
4 mths |
6 mths |
|||
Other interlocutory orders |
8 weeks |
4 mths |
8 mths |
||||
Bankruptcy and Directors' Disqualification cases |
8 weeks |
4 mths |
6 mths |
||||
Preliminary issues |
6 weeks |
4 mths |
6 mths |
||||
Final orders |
8 weeks |
5 mths |
9 mths |
||||
Possession |
6 weeks |
4 mths |
6 mths |
||||
County Court |
Interlocutory orders |
6 weeks |
4 mths |
8 mths |
|||
Possession |
8 weeks |
4 mths |
6 mths |
||||
Preliminary issues |
6 weeks |
4 mths |
6 mths |
||||
Final orders |
8 weeks |
5 mths |
9 mths |
||||
Tribunals |
Other than Immigration & Social Security appeals |
8 weeks |
5 mths |
9 mths |
|||
Social Security Appeals |
8 weeks |
5 mths |
9 mths |
||||
Immigration Appeals |
8 weeks |
4 mths |
6mths |
||||
28th February 2003 Lord Phillips of Worth Matravers MR
[1] Arbitration, though less formal than litigation, often mirrors court procedure, with the extra cost involved in paying the fee of the arbitrator(s) and the hire of rooms. Early neutral evaluation (which judges can sometimes undertake, though they cannot thereafter try the case) is not common.
[2] Hazel Genn, March 2002, Paper on the Court of Appeal ADR scheme.
[3] The introduction in conjunction with the 1998 Reforms of procedures requiring the parties to exchange information at an early stage, including pre-action protocols before commencing proceedings in certain areas, has also had the effect of encouraging settlements by ordinary bi-partite discussion, independent of any mediation.
[4] E.g. on a value basis - such as £75 for claims up to £15,000, £150 for claims up to £50,000 and £250 for claims above that - or sometimes on an hourly basis – such as £125 for up to 4 hours and £75 per hour thereafter.
[5] Summary judgment can be given against a claimant in any type of proceedings - except a small number of claims pertaining to property rights, particularly applications for possession of residential premises against a mortgagor or a tenant or a person holding over after the end of his tenancy whose occupancy is protected within the meaning of the Rent Act 1977 or the Housing Act 1988; and proceedings for an admiralty claim in rem and contentious probate proceedings. However, even in these excluded cases there is nothing to stop the defendant from seeking summary judgment against the claimant.
[6] To give rise to the consequences provided by CPR, such an offer must be open for acceptance for at least 21 days
[7] There are also provisions for such offers to be made, and taken into account in costs, before proceedings are actually begun: CPR36.10. In that case, the costs benefits to a defendant to a money claim of having made such an offer depend upon his making a matching payment into court within 14 days after service on him of the claim.
[8] Gottwald, “Civil Justice Reform: German Perspective” in Civil Justice in Crisis, Comparative Perspectives on Civil Procedure, edited by AAS Zuckerman (Oxford, OUP, 1999) at p 220.