Debt Pre-Action Protocol – 1st October 2017

Civil justice in England and Wales is well known for having prescribed overtures to the litigation procedure. These are termed “Pre Action Protocols” (PAPs). The word “protocol” suggests a rigidity which falls slightly short of the Civil Procedure Rules themselves, and terminology does indeed imitate reality. Sanctions for not following a protocol have not been as draconian, or as rigidly enforced, as the rules themselves, but the courts do expect compliance where possible.

For years now, there have been formal PAPs for numerous differing areas of legal dispute, such as clinical negligence, housing disrepair, construction, injury and industrial disease. Until now, however, there has not been a PAP for debt.

The first PAP for debt work comes into effect from the 1st October 2017. From that point on, the courts will expect you to have followed the protocol in any “business” dispute over a debt.

The qualification above is due to the fact that not all business disputes are covered.

The debt PAP applies to the following disputes only:

• Business to consumer

• Business to Sole Trader

It does not apply to business to business debt (other than above), nor does it apply to consumer to business disputes. It is easy to see that the intention here, in addition to introducing a formalisation of the pre-litigation process, with a view to reducing the pressure on the courts, is to retain an equality of arms between the parties.

Letter Before Action
There are several elements which must be included in your Letter of Claim to the debtor before proceedings are started. The Letter of Claim should contain the date and your return address, together with the following information:

a. The amount of the debt;

b. The amount of interest/charges and whether they are continuing; If not included in the letter, an up-to-date statement of account for the debt together with interest and any other charges must be sent separately,

c. Written contract/or other agreement in writing – you must offer to send a copy of any documents in which the terms of the agreement were reached on request;

d. No written contract – you must include a brief account of where, when and with whom any oral agreement was made, what was agreed, and if possible the words spoken. If the debt has been assigned, you should provide details of the original debt and creditor, when it was assigned and to whom;

e. If an offer has already been made by the debtor, why their offer is not acceptable;

f. Details of how the debt can be paid, including options for payment;

Letter Before Action – Enclosures
With the letter before action, you MUST send the following:

a) Information Sheet

b) Reply Form

c) Financial Statement form

These are provided as specimens at the end of the protocol. I have included them as separate documents to be downloaded above. The Complete Response Pack, as one document, can be downloaded here.

Service of Letter Before Action
The Letter of Claim MUST be sent by post, but can also be sent by email or fax if you have other contact details. It MUST however be sent by post.

No Reply
The debtor has 30 days to reply. If the debtor does not reply to the Letter of Claim within 30 days of the date of the letter, the creditor may start court proceedings, although, NOTE WORDING – “If debtor doesn’t reply“, NOTif a reply is not received“. It’s therefore advisable to wait until a few days after the 30 day period expires, in case the debtor’s reply is posted late.

Reply from Debtor
The debtor is required by the PAP to:

a. Use the Reply Form for their response;

b. Request copies of any documents they wish to see;

c. Enclose copies of any documents they consider relevant;

If the debtor replies, the creditor should not start court proceedings less than 30 days from receipt of the completed Reply Form, or 30 days from the creditor providing any documents requested by the debtor, whichever is the later.

The creditor should be prepared to allow the debtor more time if there is evidence that the debtor is actively engaged in the PAP process, or seeking debt advice, or seeking time to pay.

If the creditor does not agree to a debtor’s proposal for repayment of the debt, they should give the debtor reasons in writing.

A partially completed Reply Form should be taken by the creditor as an attempt by the debtor to engage. The creditor should attempt to contact the debtor to discuss the Reply Form and obtain any further information needed to understand the debtor’s position.

Early disclosure of documents and information is encouraged, and the protocol requires the parties to provide full disclosure, sufficient to enable them to understand each other’s position. Any documents requested should be provided within 30 days of request.

Unfortunately, the completed Protocol provides no option for a reply not using the Reply Form. The answer to this anomaly, I believe, can be found in the court’s approach to compliance with other Pre Action Protocols, and that approach requires compliance with “the spirit” of the protocol. S2 of the PAP covers the aims of the protocol, which are to encourage engagement and promote early settlement, thereby avoiding litigation. Therefore if the defendant replies by means other than the Reply Form, the court will probably expect the creditor to give them the benefit of the doubt, and continue trying to service the aims of the protocol.

If the parties cannot reach agreement, they are required to consider Alternative Dispute Resolution (ADR – Mediation), although this is no more than a mirror of the compulsory requirement encompassed in the Allocation of cases to the Small Claims Track.

If a matter proceeds to litigation, the court will expect the parties to have complied with this Protocol. The court will take into account non-compliance when giving directions for the management of proceedings. The court will consider whether all parties have complied in substance with the terms of the Protocol, although it is unlikely to be concerned with minor or technical infringements, especially when the matter is urgent.

For further information about the court’s approach to compliance, see the Practice Direction – Pre-Action Conduct and Protocols (paragraphs 13 to 16).

Since the 2013 changes to Court procedure, encompassed in the Legal Aid, Sentencing and Punishment of Offenders Act (2012), the Courts have been much more harsh on, and much less tolerant of, non-compliance with the rules. This extension of the Pre-Action Protocol regime to debt claims, means that, where you may not before have been penalised for failing to follow accepted procedure (albeit informal), you will now.

It is therefore crucial that, in the event of a dispute, you ensure that you follow the Protocol as closely as you follow Court Orders and the rules themselves, as if you fail to do so, even if you win your case, your victory could be soured by costs or other penalties being imposed on you.

It is difficult for busy small businesses not to view this as just one more minefield they must navigate. You do not however need to do it alone. For more information on how I can help you, please contact me.



Scotland & N. Ireland, in… United Kingdom, out… Fair?

The fundamental basis of the referendum of the 23rd June 2016, was both misconceived and unsound. The result undermines the powers devolved to Scotland and Northern Ireland by the United Kingdom, and their ability to exercise those powers.

Schedule 5 of the Scotland Act (1998) defines those policy areas which are “reserved” to the UK Parliament, leaving other matters devolved to the Scottish Parliament.

The Northern Ireland Act (1998) gives the Northern Ireland Assembly control over “transferred” matters. Schedules 2 & 3 of the Northern Ireland Act specify matters that are “excepted” and “reserved” respectively, both categories comprising matters reserved to the UK Parliament. Any matters not included in Schedules 2 & 3 are devolved.

Consequently matters devolved to Scotland and Northern Ireland include, but are not limited to:

  • Health and Social Services;
  • Education;
  • Agriculture;
  • Social Security;
  • Housing;
  • Economic Development;
  • Local Government;
  • Environmental Issues;
  • Planning;
  • Transport;
  • Culture and Sport;
  • Justice and Policing.

The United Kingdom retains responsibility for “reserved” and “excepted” matters, which includes jurisdiction over administrative and constitutional matters, and therefore includes the EU referendum.

In the EU referendum of the 23rd June 2016, Scotland and Northern Ireland both overwhelmingly voted to remain in the European Union (Scotland 62%; Northern Ireland 55.8%). Despite this, both Scotland and Northern Ireland are to follow the result of the UK referendum, and leave the European Union.

There is a fundamental conflict between the extensive powers devolved to Scotland and Northern Ireland, and the decision forced on them by the United Kingdom as a whole, which renders their ejection from the European Union unfair, unconstitutional and undemocratic. The result undermines the powers given to those countries, the entire basis of the Scotland and Northern Ireland Acts, and those countries’ abilities to enact the policy devolved to them by the United Kingdom.

The result of the referendum of the 23rd June 2016 is therefore unsound, and should be disregarded, and a second referendum should instead be held, which acknowledges the significant self-governance of these two countries, and therefore their right to decide their membership of the European Union, and therefore their own future.

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Justice Without Lawyers

Justice without lawyers. How does that work then? Probably about as well as a healthcare system without home grown nurses.

It is widely considered that one of the main drivers of the enormous NHS trust deficits is Government cuts to training places. All very well in theory, but at 1 o’clock in the morning when a busy trauma department is filling up with patients and needs staff, what are they supposed to do? Turn patients away? Of course not. Their only alternative is to turn to agency staff, a much more expensive option, but often the only option. Worse still, it’s not like the government couldn’t have seen this coming.

Returning to the law, the Government have been reducing the general public’s access to legal services for going on three years now, and one of their wheezes for this year, has been virtualisation of the courts and court process. In other words, move the litigation process online, reduce the staffing bill, and close the courts.

So, having created an advice vacuum with their policies of the last 2-3 years the Government is talking about Online Dispute Resolution (ODR) as if it is a panacea to cure the very vacuum they have created, and yet it obviously cannot possibly be any such thing. What it will actually do is replace the system we have now; people using physical court buildings and staff to process and adjudicate their disputes, with a virtual place and process. It will not, and cannot, replace legal advice. To suggest otherwise, is analogous to suggesting that if you close down hospitals and take doctors out of the equation, you can replace them with a self-diagnosis and prescription website. Utter, utter, tripe.

I left partnership in a firm to set up my own practice 6 months ago, which is aimed at assisting small businesses and consumers with contractual disputes at low fixed fees, and which was prompted by another government policy, their doubling of the small claims limit 30 months ago to £10,000. The carnage I have seen, and helped people through, in the last 6 months has to be seen to be believed:

– all caused by the same mindset that has produced this announcement- The justice system therefore needs to adapt to make sure that people can still access it without lawyers by a process designed to work without lawyers (The Right Hon. The Lord Thomas Of Cwmgiedd Lord Chief Justice Of England And Wales, 25th September 2015) – an absence of lawyers. Had the small claims limit not been raised, many of those people could have afforded lawyers, because if successful, they could have recovered the money they were spending on legal fees.

In the last month, I was hired by a client less than a month before her trial, to try to help her. She was involved in an acrimonious contractual dispute with a business lender. It was only at that point that she realised that she was in trouble. She had a very good argument that the case, which was run (badly) by professional lawyers against her, was unfounded. Unfortunately, because she had only a limited understanding of the law, she was blind to a critical development in the case which destroyed entirely her chances of defending the case, only a couple of months after she started. Had she been legally trained, she would have seen it immediately. Even the judge at the final hearing told her that theoretically, she had a good argument, but that she had lost the chance to capitalise upon it. Had she hired a lawyer a year ago, when the dispute first began, she may have avoided a substantial judgement against her which was awarded a week ago.

Her position would have been no different had the court been online.

The Government’s attitude to litigation is that it is very much an optional activity”. I doubt that my client felt that she had much option when she was trying, and failing, to save her business without the help she needed, and could not afford.

And yet the government persists in pursuing policies time and again which withdraw legal help from all but those with the money to afford it. Even GPs have reported an increasing number of consultations with patients who have unresolved legal needs, which are adversely affecting their life, their mood and therefore their health.

Perhaps perversely, this all reminds me of a brilliant scene in Blackadder 4:

Blackadder – Would this brilliant plan involve us climbing over the top of the trenches and walking very slowly towards the enemy?”
Darling – How did you know that, Blackadder? It’s classified information.
Blackadder – It’s the same plan that we used last time, sir. And the seventeen times before that.
Melchett – E-e-exactly! And that’s what is so brilliant about it. It will catch them off-guard. Doing exactly what we have done eighteen times before will be the last thing they’ll expect us to do this time”.

And there is the problem. They keep repeating the same behaviour, expecting different results:

This is particularly so when the Government have already admitted that they pushed many of these changes through without any, or any effective, consultation.

Most of their reforms so far have had the cumulative effect of removing access to legal representation, advice and assistance. Taking lawyers away from people has caused this – saying that they will have to get used to it is not going to fix the problem, and is only going to make it worse.

At the start of this year, 87% of lawyers thought that legal representation was no longer a right. The LCJ appears to have just given that view his blessing!

This is the clearest confirmation yet that the Government does not WANT people to have legal representation. In fact, it mirrors their stance on Judicial Review, where restricting the scope of JR would reduce the likelihood of challenge to Government policy.

For the last six years, the Government has been behaving like a cowardly schoolyard bully, trying to ensure that the fight is unfair, and is rigged in their favour.

ODR cannot replace the need for legal representation, and neither can any “virtual” court system the Government intends to introduce. Representation, advice and legal assistance will still be needed, whatever system the Government puts online, because, just as in medicine, people need the help of experts in their field. They cannot solve complex legal problems by navigating a few decision trees online, and furthermore, regardless of the views of the LCJ, unrepresented litigants taking action against a large business (who will very likely still be legally represented), or vice versa, will still be at a disadvantage to the represented party, as in my client’s case.

As the Guardian says in their article above What the figures do not convey is the sheer human misery of being unable to get legal advice”.

In May, I wrote an article entitled “The Sick Society”, in which I made a number of predictions as to the likely path of society if this Government’s judicial policy does not change. None of those predictions have changed, but there is a growing wealth of evidence that they are already happening. They are:

• with fewer controls on employers, combined with an ever more competitive marketplace, there is likely to be a steady increase in the number of unemployed and underemployed people (zero hours contracts and those on unpaid apprenticeships and internships notwithstanding);
• an increase in the number of innocent defendants choosing to plead guilty in order to avoid punitive court fees if their case is lost;
• an uphill struggle for small businesses and injured people, who will find it increasingly harder to achieve redress against defendants with greater means;
• a long term deterioration in familial relations, due to all of the above, and also due to there being no effective method available for spouses and parents who cannot afford legal advice and assistance to resolve their issues;
• a concomitant impact on the social and emotional development of children, the nature of which can only be guessed at, but which is obviously not going to improve;
• with all of the above we are also likely to see an increase in mental health issues with a resultant increasing burden on the NHS. In fact, this has already been found to be the case, even in children.

Parliament’s own report into the impact of these changes, the “Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012” states:

“80. Witnesses observed that demand for [legal] services was going up, partly as a result of the legal aid reforms but also because of other reasons such as changes in the benefits system and immigration rules, pressure on housing and rising use of zero hours contracts.[138]”

This isn’t just my opinion. It is happening.


Justice is, and always has been, at the core of our society. So instead of saying that people will have to get used to life without lawyers, the Government should be finding a way to restore contact between the general public and the legal services they once had, but have, under the last two Governments, lost.

It is truly a sad reflection of our leadership, that all of this is happening in the year in which falls the 800th anniversary of the signing of the Magna Carta, but this fundamental affront to our proud legal heritage also highlights the clear agenda of the incumbents; that justice should no longer be defined as “Just behaviour or treatment: a concern for justice, peace, and genuine respect for people” [Oxford Online Dictionary], but as a commodity to be bought only by those with sufficient means to afford it.

Everyone else will have to DIY.

Meanwhile, I have to get back to work. My hot water boiler has packed up, and I’m sure that with a £5 toolkit and a modicum of common sense, I can replace it and have the taps running hot by tea time…

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Compulsory Community Service for Lawyers

Yesterday, I posted a hypothetical article exploring what it would be like if the members of a profession other than the legal profession were expected to work for free.

This was prompted by a think tank study suggesting that lawyers should be made to work for free.

Regardless of the reasons given in the report (“reputational repair”…), the clear drive for this is to fill the huge advice desert created by the Government’s legal changes over the past three years, in particular, LASPO (the Legal Aid, Sentencing, and Punishment of Offenders Act (2012). Indeed the day after the report was published, Michael Gove announced that the Government will not backtrack on their legal aid changes (and why should they – the “fix” was announced the day before).

The proposal, when you look into it in a bit more depth, however, is truly startling in the liberties it takes with the rights of the British professional.

These plans, if brought to fruition, will result in lawyers working for free for up to 10% of their working year. The proposal is that this will be compulsory.

The only other societal situation in which this occurs, is in “Community Payback” (the current name for what we used to know as Community Service).

Community Payback is a compulsory work order given to convicted criminals as an alternative to custodial sentences.

According to Gov.UK, Community Payback sentences can be given for periods of 40 to 300 hours, depending upon the seriousness of the crime. The average of 40 and 300, is 170 hours.

170 hours is 4.25 working weeks.

10% of a lawyer’s working year, is 4.8 weeks (10% of 48 weeks, having deducted 4 weeks holiday).

So to summarise, the Government’s latest proposal to fill the advice vacuum left by their hugely destructive legal changes, is that lawyers should do more compulsory unpaid work in a year than criminals convicted of offences such as damaging property, benefit fraud and assault.

Only, unlike criminals, lawyers should have to do this every year of their career.

Sentenced, but not tried or convicted.

I can’t wait to see the legal justification for this.

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Accountants to be forced to work for free?

A Westminster-based think tank today released a report stating that accountants should be made to work for free.

The think tank (“Public Thingy”), has released a report, which, amongst other things, argues that the public has lost trust in their professionals, and in particular, accountants. The report states that “A variety of indices suggest declining levels of trust in the UK”….”Collapse of public trust in institutions and professionals should particularly concern us, not least because in many ways we are a service nation”.

It goes on to say that those working in the accounting profession, are far more trusted than bankers, politicians and journalists. However, these levels of trust cannot be taken for granted and neither are they necessarily indicative of clear virtue in practice”.

So, accountants score more highly than politicians, bankers and journalists, but if the stats don’t support your case, rationalisation is your best friend!

The report goes on, “the underlying problem for accounting practice is an increasing loss of purpose for the professions as a whole and a loss of vocation for individual professionals”“The accounting profession has seen an erosion of its sense of wider social purpose and vocation. Accountants are still more trusted that politicians, bankers and journalists” (in case you’d forgotten). 

The report holds the profession responsible for the erosion of access to good accounting practice for all.
The 36 page report however blatantly ignores the fact that the Government has imposed a withering hailstorm of attrition on the accounting sector in the last three years, including but not limited to:
  1. Reduction, verging on partial elimination, of all State sponsored accounting services, meaning that businesses who need State assistance with their accounting, are now faced with the choice of doing it themselves and getting it wrong, or paying money they don’t have for a service that used to be free, or subsidised;
  2. A bewildering assault on private accounting services, aimed at driving down the cost of accounting services to low level fixed fees, the results of which can only be a reduction in service levels and an increased level of professional negligence.
Given that the result of both 1. and 2. are that accountancy practices, particularly smaller ones, are less able to provide quality accounting services for the fees they can now legally charge, it is difficult to understand the conclusion of Public Thingy’s report that, having had their fees summarily suppressed by legislation, accountants are to be expected to carry out 10% of their work for free.
To draw an analogy, according to this report, politicians are still held in lower regard than accountants. As everyone knows, David Cameron stated that he believed the award of a 10% payrise to MP’s was “wrong”, which would seem to fall in line with Public Thingy’s expectations of social conscience in the professions. Of course despite denouncing the award, he didn’t manage to actually reject it, but Mr Cameron did nevertheless stand firm, and through a Downing Street source, said We’re writing a letter to Ipsa to reiterate we stand by the detailed submission we had already made to them last year saying we think this rise is wrong.”
So Mr Cameron “wrote a letter”. That’s that sorted.
All’s well, honour is satisfied, and so is the bank manager.
So, politicians have done the decent thing. What are accountants going to do to restore their tarnished image?
The fact that their image has been irrepairably damaged by Government action which has resulted in the depression of the industry’s service levels from limousine to Lada, is not the Government’s problem.
Public Thingy have the solution: get them to work for free. They should donate 10% of their time free, to fill the gap left by the Government, whose meddling has decimated the industry, and the sterling and ubiquitous service it used to provide. And that’s after having drastically reduced the level of fees they can charge for the work they do.
This all sounds like either a warped nightmare, or a very bad joke. Could the Government really wreak havoc on the accountancy sector, and could they really make accountants work for free?
Of course they couldn’t.
Of course they wouldn’t.
And they wouldn’t make plumbers work for free, or printers, or roofers, or shopkeepers.
And ResPublica (I make no apologies for the truly appalling pun), the Westminster think tank, have provided the weight Gove needs to begin moving such a proposal forward.
Why is it that this Government manifests itself as a self-styled paladin of commercial enterprise, and yet has time after time proven itself committed to throttling the life out of the legal industry, clearly secure in the belief that the law can take everything thrown at it and still continue delivering 110%?
The Law is the foundation of civilized society. As anyone who has played Jenga will know, continuation brings a certainty of collapse.
Still, at least accountants are safe.
For now.
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Err, TWO non-lawyer Lord Chancellors?

Radio silence for the last month, I know, but life has overtaken me, and, if I’m honest, all has gone quiet (well, relatively so) on the MOJ front.

Not really surprising since we have just had an election however, and all the new incumbents have of course retired to the “Plotting Room” to hack out their battle plans.

Did I say “Plotting Room”?

I meant “Cabinet Room”.

It’s now old news that Cameron has appointed Michael Gove as Lord Chancellor. It’s also old news that Mr Gove is the second LC appointed by Mr Cameron (in a row) to be missing a professional legal qualification. To be fair to Mr Gove, he hasn’t had a chance to make his presence felt yet, and it’s only fair that we give him that chance. I’m talking of course about his role as LC. Obviously he’s had his fair share of headlines to date:

  1. the National Association of Head Teachers,
  2. the Association of Teachers and Lecturers,
  3. the National Union of Teachers, and
  4. the National Association of Schoolmasters Union of Women Teachers,

…due to his education policies. Tim Gallagher, who proposed the motion for the NAHT, said: “This motion’s intention is to send the strongest message possible to this government that many of their education policies are failing our children, their parents and the very fabric of our school communities.” His education policies were considered by highly experienced Head Teachers as “devoid of meaningful consultation” and “lacking in understanding”.

Interestingly, Chris Grayling, his predecessor as Lord Chancellor, was accused by the legal profession of skimping on his consultations and of having no understanding of his role – the more observant readers may have spotted a theme developing at this point (as will the less observant).

But, the purpose of this brief missive (for those used to my blogs who are currently uncorking the bottled oxygen, I promise, this one is brief) is not to discuss Mr Gove’s record at the MOJ. Time enough for that later.

The purpose of this article is simply to float a question, which I am surprised I have not seen raised since the election.

What possible reason could there be for Cameron appointing two non-lawyer Lord Chancellors?

The first? Possibly coincidence, on a good day, if you were feeling in a generous mood, downhill, with a following wind (and possibly afterburners) etc, etc.

The second? Coincidence again? Not a chance.

The only rational explanation for appointing two non-lawyers to the position of Lord Chancellor, having already run the five year gauntlet of beatings from the judiciary, can only be to ensure that justice does not get in the way of cost cutting.

After all, if you were demolishing a house, you wouldn’t use a builder. Would you.


In three days’ time, we have a general election. So far, we have heard a great deal from the parties about who will be allying with who after the election, or not, but little about the detail of their promised policies. Not that promises mean much anymore, after the Liberal Democrats’ now famous u turn on their promise to oppose increases in tuition fees.

But their policies are the reason we turn out every four or five years to cast our vote, and after the socio-economic firestorm of the last five years, many people feel that reparation is required, and the parties’ policies should reflect that.

No right-minded voter would vote on the basis of one single issue. However there are issues whose effects percolate throughout the entire fabric of society. Justice is one of them.

In the film, Devil’s Advocate, after Al Pacino has just told Keanu Reeves that he is his father (oh, and Satan – who’d have thought…), Keanu Reeves asks him why he chose to manifest himself on Earth as a lawyer:

Keanu Reeves (Kevin Lomax); “Why the law?”
Al Pacino (John Milton/Satan); “Because the law, my boy, puts us into everything”.

The story is thankfully fiction, but the point above is not only a fact, but a blindingly obvious one at that. Which makes it all the more extraordinary that a seemingly intelligent group of politicians can have inflicted so much damage on the legal system of England and Wales.

Over the last five years, the Conservatives have taken it upon themselves to mount a sustained and vigorous attack on the rights of the common man. Among their more well-known policies, they have:

  • Introduced the “Bedroom Tax”, and Benefits sanctions for the most minor of defaults; both have resulted not only in widespread hardship, but even in tragedy;
  • Withdrawn legal aid for both family and criminal work, and have left convicted defendants who have pleaded not guilty facing payment of high fees, leading many to believe that many accused parties may prefer to plead guilty rather than roll the dice at trial;
  • Stated their intention of reducing the costs of civil litigation, and did so, and then raised court fees by an average of 600%. How raising court fees is supposed to be compatible with the Government’s identified issue that “The costs of civil litigation are too high, and are fuelled by no win no fee conditional fee agreements (CFAs)”, is anyone’s guess, and is just another illustration of the undisguised hypocrisy and contempt which has characterised much of the policy of the last five years.
  • Increased tribunal fees resulting in a reduction in tribunal applications of approximately 70%. The only logical result from this is that employees who have been unfairly dismissed are not taking action because they cannot afford the fees.
  • Taken action to restrict access to Judicial Review, one of the most powerful tools available to the people when seeking to hold the Government to account.

As a result of the above changes, one survey states that people are now more concerned about access to justice than access to free healthcare. This point is reinforced by the fact that GPs are reporting that they are seeing increasing numbers of patients with unresolved legal needs during their consultations.

It is not only the public, but Judges who are becoming more and more concerned at this withdrawal of justice from the masses. Sir Alan Moses recently said, “No one seems to care about the plight of those who have neither the ability to protect themselves in a legal sense and cannot afford a lawyer”. And for those brave people who do try to present their own case, the courts cannot cope.

An open letter was recently written by more than a hundred Peers, lawyers and doctors, requiring that the new Government, whatever creed it may be, takes steps to restore justice to the people.

This plea has become lost among the headlines, and was no doubt viewed by some in Whitehall as just another whining and self-serving attempt at self-promotion by those who submitted it.

I believe it is a genuine appeal to the next incumbents to fight a cancer in our society, which was born out of, and is growing due to, this Government’s policy. I further believe that there are serious long term consequences looming if some of the changes that have been introduced in the law are not reversed.

Cameron came out just over a year ago and finally admitted that he was not imposing austerity just in order to repair the economy, but because it was the way he believed society should stay.  He said that the Country needs “to do more with less”. If these policies continue, many people, almost all of them less wealthy and more vulnerable members of our society, will get less for less, not more for less.

The Tories talk about rising employment figures, but the reality is, with checks and balances on employers reduced, (see this article for a summary) zero hours contracts and under employment more prevalent, a sick work force with a growing reliance on food banks, and this can only get worse.

From my long years of experience as a personal injury lawyer who has worked on employers’ and public liability claims, I know that, whilst the large majority of employers may well treat their employees fairly, many don’t, especially the lower paid employees. The above changes are already making that worse.

Add to that restrictions on the quality of representation already being seen due to the introduction of fixed legal fees for injury claims, the withdrawal of legal aid for most family work and its reduction in criminal work, and the doubling of the Small Claims Limit in April 2013, and it is apparent that justice is no longer a foregone conclusion in most adversarial cases, particularly in low value disputes. Even the Master of the Rolls believes this to be the case.

Women and children are staying in violent relationships because they cannot afford to take legal action.

And finally, we could shortly have innocent people pleading guilty, simply because they cannot afford the consequences of losing, whether they are innocent or not.

Cameron heralded his 2010 campaign with his flagship policy – the “Big Society”. What he has achieved in the last five years is no Big Society, but a “Sick Society”, where success replaces justice as a commodity to be bought by those with the means to afford it. Meanwhile for those who cannot, in the longer term, the consequences are likely to be;

  • with fewer controls on employers, combined with an ever more competitive marketplace, there is likely to be a steady increase in the number of unemployed and underemployed people (zero hours contracts and those on unpaid apprenticeships and internships notwithstanding);
  • an increase in the number of innocent defendants choosing to plead guilty in order to avoid punitive court fees if their case is lost;
  • an uphill struggle for small businesses and injured people, who will find it increasingly harder to achieve redress against defendants with greater means;
  • a long term deterioration in familial relations, due to all of the above, and also due to there being no effective method available for spouses and parents who cannot afford legal advice and assistance to resolve their issues;
  • a concomitant impact on the social and emotional development of children, the nature of which can only be guessed at, but which is obviously not going to improve;
  • with all of the above we are also likely to see an increase in mental health issues with a resultant increasing burden on the NHS. In fact, this has already been found to be the case, even in children.

None of this is likely to have a beneficial effect upon the country’s GDP.

All of us, regardless of our position in society, could find ourselves down on our luck. A divorce, a redundancy, a repossession, a County Court Judgement could be all that separates us from those looking to the State for support.

If we were to do so today, however substantial our contribution to the exchequer over the years, we are unlikely to meet with any sympathy. In fact, Mr Cameron recently summarised the Government’s position succinctly, when he suggested that those requesting financial help to bury a dead war hero should seek a “charitable solution.

At some stage, if not in the next Parliament, someone with the power and authority to make a difference, will realise that, in the words of Al Pacino, “the law, my boy, puts us into everything”. Hopefully they will then be able to begin undoing some of the damage that the Conservatives have done over the last 5 years.

I just hope it doesn’t take too long for the penny to drop.

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Court Fee Rise – Early April Fool!

As my blog so far has not been what you might called “light hearted”, I couldn’t resist an opportunity to inject a little levity into it.

And this letter from Chris Grayling, Lord Chancellor has provided that opportunity.

For any not familiar with the recent 600% Court Fee rises, I have already written about the hypocrisy demonstrated by the Government in implementing these rises, and I have also written about Justice Minister Lord Faulks’ comments that “litigation is an optional activity“, which of course is great news for those who face losing their business, or life in a wheelchair.

It seems however that the Lord Chancellor, having instigated the highest Court Fee rise in British History (maybe even in world history), by a long way, has now decided, for some reason which is not clear (until you remember that there is an election in a month’s time), to offer the olive branch of a possible review of his monumental Court Fee rises.

So, raise fees by up to 600% seven weeks after they first announce the idea. Then offer a month later to keep them under review.


The obvious question that arises from this is, does he now believe the decision to implement the fee rises was wrong?

Everyone knows that the Court Fee rises of 600% don’t pose any risk to access to justice – Justice Minister Shailesh Vara said so. As the minister also said, this is a “sensible measure”. Of course it is!

So why the need to keep them under review?

Maybe the MOJ is not quite as sure of their facts as they initially seemed to be. Let’s look at the letter. 

It says that the scheme has only been in place for a short period of time so far, and it’s not possible to judge whether there will be any impact. Technically true. However, if the Government suddenly decided to increase the cost of iPads by 600%, and announced “we’ve decided to increase the price of an iPad from £400 to £2400;  there’s no evidence of any impact yet, but we will keep matters under review in case guidance needs to be tightened in “exceptional circumstances”, the public would be pleased, right? It’s a “sensible measure”. And obviously no rational person would jump to the completely irrational conclusion, without solid evidence, that iPads were now wildly overpriced, and wouldn’t touch Apple with a barge pole. People would continue buying them at the 600% inflated price, until the Government had gathered sufficient evidence of an impact. Right? Of course they would.

And for those societal “exceptions” who could not afford to find £2,400 for their iPad (or £10,000 for the Court Fee that may save their business or their livelihood), they have the comfort of knowing that the fee rise may be reviewed in “exceptional circumstances”. Are those the same exceptional circumstances as are now applied to Legal Aid applications (1500 applications; 69 successful)? If so, I won’t be holding my breath for the review.

He also says in the letter, that there are arrangements in place to help people bring “these sorts of claims”, which he states are CFAs (no-win, no-fee contracts) and ATE insurance.

Firstly, what “sorts of claims”? Do the increased Court Fees apply to only one type of claim? Please clarify Mr Grayling, as I must have missed that part of the press release.

Secondly, he is saying that solicitors or After the Event insurers (ATE) should stump up the hugely increased Court fees. Well, true, that is what normally happens. But two years after the Government dramatically cut solicitors’ fees, and also introduced Costs Budgeting for larger claims (a process which is proving to achieve nothing more than to generate massive amounts of extra work for claimants, and to provide defendants with a pre-trial opportunity to reduce the claimant’s costs – effectively, a “practice shot”), they now propose asking solicitors to carry up to 600% more in Court Fee disbursements for two to three years!

Really? How much more can the Claimant solicitor business model take?

He also says that “many of your concerns are addressed by the current fee remission scheme”. So if I’m following that correctly, a scheme which allows some claimants who claim benefits remission from Court Fees, will help people cope with a 600% rise in Court Fees. So how will that scheme help seriously injured claimants who are not on benefits? And how will such a scheme help small businesses who have already suffered a significant financial loss?

It is tempting, as has so often been the case over the last couple of years, to think that he is so appallingly misguided in his policies because he is not a lawyer, and has no idea of the effect of such changes at the coal face.

Or maybe his boss has simply told him that there’s an election coming, and to knock out a few lines to keep the punters happy?

Or maybe the letter is just an early April Fool. One way or another, the answer will present itself tomorrow.

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Last month, the Civil Justice Council’s Online Dispute Resolution Advisory Group produced a report recommending a trial of Online Dispute Resolution, which they believe could help extend access to justice to those who have been disenfranchised by the Government’s numerous changes to the English legal system.

Online Dispute Resolution (ODR) is an internet-based court service, which the CJC Advisory Group say is designed to bring parties together and assist them in resolving their disputes with a minimum of fuss and expenditure.

Their vision sees the dispute resolution process divided into three categories:

Tier One – Online Evaluation. To help users with a grievance to classify and categorize their problem, to be aware of their rights and obligations, and to understand the options and remedies available to them.

Tier Two – Online Facilitation. Online “facilitators” will help parties through mediation and negotiation, with the help of some automated negotiation.

Tier Three – Online Judges who will decide suitable cases online.

As you may have guessed, I have various issues with this, many of which I have already aired.

Whilst this report was written by an Advisory Group to the CJC, it was commissioned by the Government in an effort to resolve the problem caused by the rising number of unrepresented people at court, the problem being that unrepresented people take longer to get through cases and generally have lower prospects of a negotiated settlement because many do not understand the law.

The irony of all this, is that the huge increase in the numbers of unrepresented people, (“Litigants in Person”, or LIPs) has been caused by the Government.

The changes introduced in the Legal Aid Sentencing and Punishment of Offenders Act (2012) have resulted in a dramatic increase in the number of unrepresented people, primarily because their legal lifeline was cut off by the near complete withdrawal of Legal Aid for family work, forcing almost 60% of parents to represent themselves in Court.

The number of LIPs in Court has been increased further by the doubling of the Small Claims Limit from £5,000 to £10,000 from April 2013. In a nutshell, this means that, whereas before that date, for debts of between £5,000 and £10,000 you could afford to hire a lawyer because you could recover their fees if you won, you no longer can. This is all further compounded by the fact that, because of the lack of legal representation, many cases are resulting in the wrong decision. Even the Master of the Rolls believes that without lawyers to help people, this is inevitable.

So, to summarise where we are so far, the Government, having created an advice desert, is now trying to fix it.

But will ODR fix it? The answer to that question is here.

Earlier this month, the Government produced a report on the 2014 Civil Justice Statistics. To quote from that document, “In October to December 2014, courts dealt with 379,000 claims and 196,000 judgements were made (1% and 15% higher respectively than same quarter last year). In contrast, the number of defences stood at 46,000, down 18% on the same quarter the previous year and the fifth consecutive year on year decrease (when compared to the same quarter the previous year). There were 829,000 judgements in 2014, up 25% on 2013. The increase is due to the combination of an increase in claims and a decrease in claims being defended, leading to more default judgements occurring”.

If we just pause for a moment there….

  • Judgements up 25% in 2014 on the previous year.
  • Defences down 18%.
  • The fifth year on year decrease in the number of defences filed.

So, how does ODR, a system designed to “help users with a grievance to classify and categorize their problem” and to “help parties through mediation and negotiation, with the help of some automated negotiation”, solve a problem where only one party comes to the table?

It takes two to tango. It takes two to mediate. It takes two to negotiate. It takes two to reach a settlement.

It takes only one, however, to litigate.

And the problem (which will have been obvious to everyone who has ever done debt recovery work by the time they finished reading the title of this article), is that it is common in debt recovery to be ignored by a defendant. And in this significant proportion of cases, how does mediation help? How does automated negotiation help? For that matter, how do Online Facilitators help?

When you take away all the window dressing of this shiny new toy, and place it firmly in the context of the English dispute resolution system as it is today, all you are in fact left with, is a very expensive computer game and no one to play it with.

Tier one is already there. By an amazing coincidence, we already have people who “help users with a grievance to classify and categorize their problem, to be aware of their rights and obligations, and to understand the options and remedies available to them”. They are called lawyers. Or they were before the Government wanted to take them away and replace them with computer decision trees.

Tier two is already there. By an even greater coincidence, we already have “facilitators who will help parties through mediation and negotiation”. They are called lawyers. And since the Government’s changes began two years ago over a thousand legal practices have closed down.

And now the Government wants to solve a problem of their own making of a shortage of legal representation, by taking more work away from lawyers and automating it.

And (here’s the rub…), they want to introduce a system which requires both parties to be at the table to work properly, into a legal framework where for much of the time there is only one party at the table.

Many have criticised the Government of being out of touch (including myself), and many would say that this is yet another example of that (including myself).

In July 2013 the Government massively increased employment tribunal fees directly resulting in a drop in tribunal applications of around 80%. This is yet another flagrant example of people losing their access to legal redress.

And, as if that is not bad enough, last year the Government announced that because of the huge drop in tribunal applications, they were considering lowering the fees.

20 years ago, I was Father Ted’s number one fan. This Government’s ham-fisted efforts at reforming the law of this land cannot help reminding me of Father Ted beating that dent out of his car – with each blow creating more carnage. Perhaps this should not be surprising when you consider that our Lord Chancellor is the first non-lawyer in that role.

I can only hope that their efforts on ODR are more carefully considered than the implementation of the changes over the last two years.