Dispute resolution: review of 2015 and letter to Father Christmas

It might seem a bit early to be reviewing the year when there is another month to go, but the Christmas lights are up in the streets and the TV ads have been on our screens for weeks. And with less than 4 weeks to Christmas, it is time to send a letter to Father Christmas to ask for some Dispute Resolution Christmas presents. Yes, I know it is really Michael Gove, the Minister of Justice, in his Santa outfit at the Ministry’s Christmas Party, but one has to enter into the seasonal spirit of things.

2015 (so far)

For me, these were the twinkling stars or black holes in the dispute resolution sky:

Access to Civil Justice

2015 has seen it become ever more difficult for any person of ordinary means or SME (small to medium sized enterprise) to bring proceedings for between £10,000 and about £1/4 million. The main “straw” added to the camel’s burden this year has been the introduction, in March, of the Orwellianly named “enhanced” (i.e. increased) government fees for issuing a claim form at court (the document by which court proceedings are initiated). (Please see Emily Kozien-Colyer’s article, Making a profit out of justice? The latest increase in court fees)

For claims up to £10,000 the small claims jurisdiction at the County Court remains affordable. However, fees to issue claims above that amount were increased fivefold (in some instances more) by the introduction of a 5% fee based upon the amount claimed. The fee is capped at £10,000 when the level of claim reaches £200,000, with the effect that the larger the claim above that level, the lower the percentage fee.

The increase drew protests from judges, professional bodies and consumer groups, but in spite of a rearguard action in the House of Lords, the measure was rushed through Parliament in advance of the May election. One cross-bench peer and Queen’s Counsel, Lord Pannick, stated the following (source: Hansard 4 March 2015):

“For litigants to have to pay such substantial sums in advance of bringing a legal claim will inevitably, in practice, deny access to the court for many traders, small businesses and people suing for personal injuries … many claimants … will not have such a substantial sum of money available at the outset of the case, or they may be able to pay these court fees only by doing without competent legal representation. The deterrent effect on litigation will, I think, make it most unlikely that the increased charges will produce the anticipated £120 million which the Government hope to produce by this order. …

On 19 December 2014, the Lord Chief Justice of England and Wales … responded to the consultation on behalf of the senior judiciary … They all know a thing or two about access to justice and litigation. They explained their “deep concerns” about this dramatic increase in court fees. …

If you wrap yourself in Magna Carta, as Mr Grayling [then the Minister of Justice] sought to do last week at the Global Law Summit, you are inevitably and rightly going to invite scorn and ridicule if you then throw cold water over an important part of our legal heritage”.

Consultation is now taking place over increasing the fee cap further to £20,000. The government’s position is that justice needs not only to pay for itself, but also to contribute to the reduction of debt/deficit in other areas.

Alternative Dispute Resolution

The “Practice Direction – Pre-Action Conduct and Protocols” has an unprepossessing title, but is perhaps the most important document in dispute resolution in England and Wales. It sets out what parties should do to try to resolve their dispute, so as to avoid the last resort of commencing court proceedings. A new and simplified version was introduced on 6 April 2015 – the authorities perhaps having tired of the ribbing that arose from the introduction of new measures on April Fool’s Day. Indeed, there is nothing at all foolish about the revised Practice Direction.

The words “and Protocols” has been added to the title to reflect the fact that the Practice Direction sets out general principles that apply where there is a specific Pre-Action Protocol in force for the type of dispute in question, as well as the principles that apply where there is not.

One of the steps stated to be expected of parties is to explore the options for alternative dispute resolution, which the Practice Direction lists as including mediation, arbitration, early neutral evaluation and Ombudsmen Schemes.

Consumer Law

1 October 2015 saw the entry into force of the Consumer Rights Act 2015 (please see Nick Cook’s article, The new Consumer Rights Act 2015)  . This is intended as a “one stop shop” piece of legislation for consumer rights. It consolidates some existing legislation and introduces new laws, such as protection for the purchase of digital content and a new 30 day period during which consumers are entitled to a refund for faulty goods: remember to have any faulty presents returned to Santa’s grotto by 24 January 2016.

Earlier this month, the Supreme Court rejected a claim by a motorist for the return of a parking “fine” for overstaying the permitted parking period in a private car park. The case has general implications for the law on “penalty clauses” in contracts and is reported on in more detail in an article by Jessica Nugent.

Defamation

The libel claim and counterclaim between Andrew Mitchell MP and the policeman he had accused of lying over his use of the word “pleb” came to an end. In January, Mr Mitchell was ordered to pay an extra £35,000 in interim costs on top of the £300,000 he had already been ordered to pay following the failure of his claim against the Sun, as well as of his defence to the policeman’s counterclaim. The total costs for which Mr Mitchell could be liable were reported perhaps to exceed £3 million.

In April it was announced that Mr Mitchell had agreed to pay the policeman £80,000 in damages for having accused him of lying.

In July, the High Court, interpreting section 1(1) of the Defamation Act 2013, ruled (in a case which unusually did not involve Andrew Mitchell) that claimants should have to prove as a fact that serious reputational harm had been caused by, or was likely to result from, the words complained of and that the court was entitled to pay regard to all the relevant circumstances, including evidence of what happened after publication. This higher threshold for a defamation claim is said to have reduced considerably the number of such claims being brought.

Procedural rules

The “Mitchell saga” also involved extensive satellite litigation back in 2014 and previous years over the failure of his solicitors to serve a document in time. New court rules had been introduced which were held by the court to mean that an extension of time should seldom be allowed and should not be allowed to Mr Mitchell. This resulted for a while in a harsh regime in the courts which caused litigants to suffer for the failures of their lawyers. Predictably perhaps, the tide was turned by a decision in another case at the end of 2014 and this year has seen common sense prevail once more in terms of sanctions for missing deadlines and other breaches of rules reverting to a more proportionate level.

“Dear Santa …”

This Dispute Resolution solicitor would like the following presents please:

1. A less “enhanced” fee for issuing a claim form, perhaps with a lower percentage but a higher cap, so that claims at the lower end of the scale are not disproportionately affected.

2. If court buildings are to be closed, please use the proceeds to create a cost-effective on-line litigation/dispute resolution system.

3. Justice to be returned to its former position as a cornerstone of our society, rather than its current status of an unaffordable option for many, to which it has been relegated by governments of all hues.

4. A determined effort to reduce complexity in court rules and procedures. When I qualified in 1983, the rules were contained in two volumes of the “White Book” comprising thousands of thin pages of close type. Over 30 years and many revisions later the rules are contained in … yes, you’ve guessed … two volumes of the “White Book” comprising thousands of thin pages of close type.

I promise that an extra large glass of sherry and mince pies will be waiting for you at the bottom of the chimney.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.  If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.