Interacción maestras – niños (as)

3.27 The Jackson Report focused on the increasing cost of civil litigation within the United Kingdom, which was found to act as a significant impediment to access to justice. As is made clear in the Jackson Report and discussed in Australian

reports⁶⁴, the attempt to use pre-action protocols across a range of areas and

61 Resolution of Small Business Disputes Summary Report of Submissions p1 August 2011

http://www.innovation.gov.au/SmallBusiness/DisputeResolution/Documents/SummaryReportofSubmiss ions.pdf (accessed 27 December 2011).

62 NADRAC, Managing Disputes in Federal Government Agencies: Essential Elements of a Dispute Management Plan, available on

<www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/AboutNADRAC_NADRACProjects_DisputeManagem entPlan> (accessed 16 September 2011).

63 Federal Attorney-General The Hon R McLelland, Getting Ready for Dispute Management Plans (speech at National Press Club, 16 February 2010), available on

<www.ag.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2011_FirstQuarter_18February2011-AGSGovernmentLawGroupseminar> (accessed 16 September 2011).

64 Lord Justice Jackson, Review of Civil Litigation Costs Final Report (December 2009), available at http://www.judiciary.gov.uk/publications-and-reports/reports/civil/review-of-civil-litigation-costs/civil-litigation-costs-review-reports.htm (accessed 21 September 2011). The Australian Law Reform Commission Discovery in Federal Courts reviews the issue of front loading of costs, notably in the UK from paragraph 5.25 in Ch 5 Alternatives to Discovery available at

32 Analysis of Literature

jurisdictions in England and Wales may have led to the ‘front loading’ of costs in some areas. Therefore, while these UK protocols may have reduced the time taken to resolve disputes, they may have increased the average cost of settlement in some areas. Lord Justice Jackson found that “there was a high degree of

unanimity that the specific [pre-action] protocols serve a useful purpose”. ⁶⁵ 3.28 Lord Justice Jackson noted in a summary of the Report that:

6.1 Pre-action protocols … There are ten pre-action protocols for specific types of litigation. By-and-large they perform a useful function, by encouraging the early settlement of disputes, which thereby leads (in such cases) to the costs of litigation being avoided. I recommend that these specific protocols be retained, albeit with certain amendments to improve their operation (and to keep pre-action costs proportionate).

6.2 On the other hand, the Practice Direction – Pre-Action Conduct, which was introduced in 2009 as a general practice direction for all types of litigation, is unsuitable as it adopts a “one size fits all”

approach, often leading to pre-action costs being incurred unnecessarily (and wastefully). I recommend that substantial parts of this practice direction be repealed. Were this to occur, however, it would not give carte blanche to claimants to whom no specific protocol applied to act unreasonably, e.g. by commencing proceedings with no prior warning to the defendant of the claim or the nature of the claim. Cost sanctions will apply to curb unreasonable behaviour.

6.3 Alternative dispute resolution. Alternative dispute resolution (“ADR”) (particularly mediation) has a vital role to play in reducing the costs of civil disputes, by fomenting the early settlement of cases. ADR is, however, under-used. Its potential benefits are not as widely known as they should be. ⁶⁶

3.29 It was also noted that earlier use of ADR in the United Kingdom could

decrease pre-action costs.⁶⁷ The Jackson report was very much focused on costs – not just pre-action protocols. The key findings of the Jackson Report in relation to costs (and making reference to the Chapter headings in the Jackson report) are as follows:⁶⁸

- Proportionality - the costs system should be based on legal expenses that reflect the nature/complexity of the case (Chapter 3);

http://www.alrc.gov.au/publications/Discovery%20in%20Federal%20Courts%20%28ALRC%20CP%202%2 9/5-alternatives-discovery (accessed 9 March 2012)

65 Lord Justice Jackson, Review of Civil Litigation Costs Final Report (December 2009), available at http://www.judiciary.gov.uk/publications-and-reports/reports/civil/review-of-civil-litigation-costs/civil-litigation-costs-review-reports.htm (accessed 21 September 2011). The Right Hon R Jackson LJ, Review of Civil Litigation Costs: Final Report (Ministry of Justice, TSO, 2009) p 345.

66 The Right Hon R Jackson LJ, Review of Civil Litigation Costs: Final Report (Ministry of Justice, TSO, 2009) pxxii.

67 See R Jackson, Review of Civil Litigation Costs: Final Report (Ministry of Justice, TSO, 2009) p xxii.

68 See also the press release of the Judicial Communications Office, Judiciary of England and Wales, entitled ‘Jackson Review calls for a package of reforms to rein in the costs of civil justice’ (14 January 2010), available at http://www.judiciary.gov.uk/media/media-releases/2010/media-release0210 (accessed 19 October 2011).

Analysis of Literature 33

- Success fees and after the event insurance premiums should be irrecoverable in no win, no fee cases (CFAs – Conditional Fee Agreements), as these are the greatest contributors to disproportionate costs (Chapters 9 & 10); To offset the claimants having to pay for success fees and conditional fee agreements from their damages, general damages awards for personal injuries and other civil wrongs should be increased by 10% (Chapter 10);

- Referral fees should be scrapped - these are fees paid by lawyers to organisations that ‘sell’ damages claims but offer no real value to the litigation process (Chapter 20);

- Qualified ‘one way costs shifting’ - claimants will only make a small

contribution to defendant costs if a claim is unsuccessful (as long as they have behaved reasonably), removing the need for after the event insurance

(Chapters 9 & 19);

- Fixed costs to be set for ‘fast track’ cases (those with a claim up to £25,000) to provide certainty of legal costs (Chapter 16);

- Establishing a Costs Council to review fixed costs and lawyers’ hourly rates annually, to ensure that they are fair to both lawyers and clients (Chapter 6);

- Allowing lawyers to enter into Contingency Fee Agreements, where lawyers are only paid if a claim is successful, normally receiving a percentage of actual damages won (Chapter 12); and

- Promotion of ‘before the event’ legal insurance, encouraging people to take out legal expenses insurance as, for example, a part of household insurance (Chapter 8).

3.30 The findings and recommendations in relation to costs are important because the Jackson Review suggests that without appropriate cost rules and principles, pre-action protocols may not work as effectively as is possible.

3.31 As identified above, soon after their introduction in England and Wales, the use of pre-action protocols were subject to criticism for ‘front loading’ the costs for litigation – and it was claimed that, in some instances, they led to an increase in the total cost of settlement and litigious actions. It was noted in the Discovery ALRC Report⁶⁹ that one comprehensive cross-section and time-series data study concluded that “it seems overall case costs have increased substantially over pre-2000 costs for cases of comparable value”, with the Woolf reforms being one possible explanation for this increase.

3.32 This accords with some views that pre-action protocols in the UK “provided quicker, although not necessarily cheaper, justice and sensible, effective case handling”.⁷⁰ Dingwall and Cloatre⁷¹ noted a further potential issue with the use of

69 P Fenn, N Rickman and D Vancappa, ‘The Unintended Consequences of Reforming Civil Procedure:

Evidence from the Woolf Reforms in England and Wales’ (Paper presented at 26th Annual Conference of European Association of Law and Economics, Roma, Italy), 28, as noted in the ALRC Report on Discovery in Federal Courts (Consultation Paper, 15 November 2010): Chapter 5 “Alternatives to Discovery”.

70 R Byron, ‘An Update on Dispute Resolution in England and Wales: Evolution or Revolution?’ (2001)

75 Tulane Law Review 1297, 1312, cited in ALRC Report, at [11.29].

34 Analysis of Literature

pre-action protocols, namely that by encouraging parties to resolve their disputes out of court, the creation of precedent and case law may be undermined by insufficient litigation, which may create difficulties in settlement negotiation, due to a lack of precedent to define bargaining power (which necessarily operates in the “shadow of the law”). This echoes concerns expressed more than two decades ago by a very small number of theorists who considered that the settlement of disputes and the use of dispute resolution processes other than court-based trial could weaken the foundations of judicial and social systems.⁷²

3.33 In February 2012, the UK Government responded to the March 2011 Consultation paper on civil justice.⁷³ The response notes that the aim of the civil justice reform in England and Wales is that:

… the system helps people to resolve their problems quickly, efficiently and cost-effectively … a system that prevents the unnecessary

escalation of disputes before cases reach the court room; where courts offer quicker and more efficient services where they are needed; where judgments can be enforced fairly; and where costs are borne in a fair way.⁷⁴

The Government’s concern was that:

… too often disputes get bogged down in the legal system that could have been resolved outside it. Once in the system, cases are resolved too late, too expensively, with complex procedures and an adversarial climate imposing costs that sometimes dwarf the value of the contested claim.’⁷⁵

3.34 In February 2012, the UK Government indicated that it would extend and further support pre-action protocols in the family law area.⁷⁶ The key

recommendations in the 2012 Report have included the expansion of ADR and other pre-action protocols:

71 R Dingwall and E Cloatre (2006) ‘Vanishing Trials?: An English Perspective’ Journal of Dispute Resolution 2006.

72 Owen Fiss (1984) ‘Against Settlement’, 93 Yale Law Review 1073.

73 UK Ministry of Justice ‘Solving disputes in the county courts: creating a simpler, quicker and more proportionate system: A Consultation Paper on reforming civil justice in England and Wales’, March 2011 available at http://www.justice.gov.uk/downloads/consultations/solving-disputes-county-courts.pdf (accessed 12 February 2012).

74 Ministry of Justice Solving disputes in the county courts: creating a simpler, quicker and more proportionate system: A consultation paper on reforming civil justice in England and Wales The Government Response (February 2012) p3

available at http://www.justice.gov.uk/downloads/consultations/solving-disputes-in-cc-response.pdf (accessed 12 February 2012). See also http://www.justice.gov.uk/news/features/feature090212a (accessed 15 March 2012).

75 Ministry of Justice Solving disputes in the county courts: creating a simpler, quicker and more proportionate system: A consultation paper on reforming civil justice in England and Wales The Government Response (February 2012) p3

available at http://www.justice.gov.uk/downloads/consultations/solving-disputes-in-cc-response.pdf (accessed 12 February 2012).

76 See Ministry of Justice, ‘The Government Response to the Family Justice Review: A system with children and families at its heart’, available at

https://www.education.gov.uk/publications/eOrderingDownload/CM-8273.pdf (accessed 15 March 2012).

Analysis of Literature 35

 An automatic referral scheme to mediation for those claims under GBP5,000 (this scheme to be evaluated before expansion to a proposed new financial limit of the Small Claims Track (currently GBP5,000)). This is not mandatory mediation but a requirement to engage with a small claims mediator;⁷⁷

 (There was a strong view from the judiciary that a scheme ought to be provided via a scheme from current Court Mediation services);

 An existing telephone mediation has been evaluated with a high customer satisfaction rating;

 Higher value claims are not being automatically referred to ADR but action on promoting knowledge of ADR is planned;

 No mandatory pre action directions or mediation information sessions are being introduced (which had been proposed for those civil cases between the Small Claims track (£5,000) and a £100,000 claims level) allowing parties themselves directly to “be given information about the mediation process and its benefits from a mediator”;⁷⁸ given a lack of appetite and support for these;

 An extension to the April 2010 Pre Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents;⁷⁹

 Planned similar pre action protocols for employers’ and public liability claims following stakeholder consultation;⁸⁰

 Similar protocols for low value clinical negligence claims may follow evaluation of a pilot scheme with the National Health Service Litigation Authority and Department of Health;⁸¹

77 Ministry of Justice Solving disputes in the county courts: creating a simpler, quicker and more proportionate system: A consultation paper on reforming civil justice in England and Wales The Government Response (February 2012) p 4, available at

http://www.justice.gov.uk/downloads/consultations/solving-disputes-in-cc-response.pdf (accessed 12 February 2012).

78 UK Ministry of Justice Solving disputes in the county courts: creating a simpler, quicker and more proportionate system: A consultation paper on reforming civil justice in England and Wales (para 164) p 49, available at http://www.justice.gov.uk/downloads/consultations/solving-disputes-county-courts.pdf (accessed 12 February 2012).

79 UK Ministry of Justice Solving disputes in the county courts: creating a simpler, quicker and more proportionate system: A consultation paper on reforming civil justice in England and Wales The Government Response (February 2012) (para 44) p 14, available at

http://www.justice.gov.uk/downloads/consultations/solving-disputes-in-cc-response.pdf (accessed 12 February 2012).

80 UK Ministry of Justice Solving disputes in the county courts: creating a simpler, quicker and more proportionate system: A consultation paper on reforming civil justice in England and Wales The Government Response (February 2012) (para 16) p 10, available at

http://www.justice.gov.uk/downloads/consultations/solving-disputes-in-cc-response.pdf (accessed 12 February 2012).

36 Analysis of Literature

 Mandatory pre action directions for money claims under GBP100,000 remain under consideration following assessment of current protocols’ effectiveness (though compulsion is dismissed for the existing protocols for rent arrears and mortgage proceedings requiring ADR);

 A majority of respondents supported this and the Government’s view in its consultation document was that the impact would be fewer claims progressing to Court;

 The extension of the fixed recoverable costs system proposed by Lord Jackson;⁸²

 Increased consideration of on paper and by telephone Court hearings;⁸³

 Consultation is planned about the domestic implementation of the EU Mediation Directive;⁸⁴

 Ensuring the robust accreditation of mediators.⁸⁵

Conclusions

3.34 The more recent reports from the UK suggest that pre-action protocols and requirements continue to be supported at the government and policy-making level, however they are often coupled with additional requirements relating to

81 UK Ministry of Justice Solving disputes in the county courts: creating a simpler, quicker and more proportionate system: A consultation paper on reforming civil justice in England and Wales The Government Response (February 2012) (para 66 to 68) p 19, available at

http://www.justice.gov.uk/downloads/consultations/solving-disputes-in-cc-response.pdf (accessed 12 February 2012).

82 UK Ministry of Justice Solving disputes in the county courts: creating a simpler, quicker and more proportionate system: A consultation paper on reforming civil justice in England and Wales The Government Response (February 2012) (para20) p 11, available at

http://www.justice.gov.uk/downloads/consultations/solving-disputes-in-cc-response.pdf (accessed 12 February 2012).

83 UK Ministry of Justice Solving disputes in the county courts: creating a simpler, quicker and more proportionate system: A consultation paper on reforming civil justice in England and Wales The Government Response (February 2012) (para26) p 12, available at

http://www.justice.gov.uk/downloads/consultations/solving-disputes-in-cc-response.pdf (accessed 12 February 2012).

84 UK Ministry of Justice Solving disputes in the county courts: creating a simpler, quicker and more proportionate system: A consultation paper on reforming civil justice in England and Wales The Government Response (February 2012) (para27) p 12, available at

http://www.justice.gov.uk/downloads/consultations/solving-disputes-in-cc-response.pdf (accessed 12 February 2012).

85 UK Ministry of Justice Solving disputes in the county courts: creating a simpler, quicker and more proportionate system: A consultation paper on reforming civil justice in England and Wales The Government Response (February 2012) (para28) p 12, available at

http://www.justice.gov.uk/downloads/consultations/solving-disputes-in-cc-response.pdf (accessed 12 February 2012).

Analysis of Literature 37

costs and sanctions. It would also seem that the extension of protocols beyond low value claims will continue to be the subject of evaluation and somewhat cautious expansion. The continuing concern that pre-action requirements could equate to a “one size fits all” approach is also being recognised by either establishing specific protocols in particular areas or adopting the approach of applying general principles and giving examples (as in the CDRA⁸⁶).

86 See

http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/civil _dispute_resolution_43/index.htm (accessed 15 March 2012).

38 Case Study Information