November 2016 Credit Management magazine

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BENCH PRESS ONWARDS AND UPWARDS Amir Ali gives the CCUA’s response to Lord Justice Briggs’ Civil Courts Structure Review. THE Civil Court Users Association (CCUA) welcomes the final report of Lord Justice Briggs and has now had time to consider its position on the points raised. Given that the court will cover money claims up to £25,000, it is clearly the case that our members’ claims will form the vast bulk of those issued as soon as the court goes live. As set out in our response to the interim report, our members already enjoy an effective and largely automated service from the County Court Business Centre and the County Court Money Claims Centre. The existence of any advantages of the Online Court to our members at the initial stages up until Judgment is therefore questionable, whereas the risks if the system proves less effective, either in the short or long-term, are considerable. While the CCUA has never been opposed in principle to the online court, it is absolutely essential that it functions correctly immediately upon introduction and that the service is at least as good if not better than the systems it replaces. ALTERNATIVE RESOLUTION The Association notes the importance placed on Alternative Dispute Resolution (ADR). While ADR certainly has its place, it is simply inappropriate for some claims. In particular with debt claims, it is often the case that the claimant is eager to engage but the defendant is extremely reluctant. Going down that route in those circumstances can simply waste time and increase cost. We appreciate that compulsory ADR is not suggested in the report, but we would be extremely concerned to avoid any move towards that. ACCESS TO JUSTICE The final report repeats previous concerns regarding access to justice, particularly as regards litigants in person. There appears to be less recognition of the points raised by the Association, whereby claimants also suffer access to justice concerns due to unscrupulous defendants rendering claims uneconomic due to persistent and blatant lack of adherence to court orders and the CPR. We suggested that fixed costs could be introduced as a deterrent to this behaviour and are disappointed that this has not been taken up. The ‘limited fixed recoverable costs regime’ suggested in the report causes the Association serious concern. Unless such costs are sufficient and adequate, this will also prevent access to justice. The current absence of sufficient costs in the small claims track means that cases are often rendered uneconomic. Extreme care should be exercised to ensure that the same system is not simply extended to include all claims up to £25,000, as that will also extend the impact of an existing problem. The report is at pains to point out that lawyers will not be expressly prevented from operating within the online court. However, unless adequate costs are available, these proposals are likely to achieve that outcome whether intended or not. Again, this is a point to access justice regarding claimants that wish to exercise their choice to be represented, but will not be able to recover the cost of doing so. COURT FEES Further to the above, the Association welcomes the final report’s concern regarding the increase in court fees and the impact this is undoubtedly having on access to justice, while appreciating that this does not fall within the report’s remit. TRIAGE Providing it is conducted effectively, the Association is extremely keen on the idea of triage and would have liked to see the concept developed further. Cases vary enormously in complexity and this often has little connection to the size of the claim. Allocation to a limited number of tracks is a very generalised and arbitrary approach. A quick review of the case once a defence is filed followed by specific directions could be of huge benefit to the efficient running of that case. For example, a defence based on the content of a written agreement could be sent for a quick and easy decision on the papers, spurious defences could be quickly struck out, whereas a complex matter could be given the structure and time it deserves. CENTRALISATION AND DIGITISATION The Association welcomes the report’s focus on centralisation and digitisation. However, there are many areas where more fundamental change is required, particularly in enforcement. CASE OFFICERS/CASE LAWYERS The Association sees the benefit of this proposal for improved case management and is reassured by the standards of qualification, training and oversight set out in the report. ENFORCEMENT We share the final report’s view that enforcement is one of the areas where there is most scope for improvement. For that reason, we are very disappointed that this has been parked for further review, while at the same time welcoming the fact that the need for a thorough review has at least been acknowledged. The Association fully supports the idea that enforcement should fall under the remit of a single, unified service, and agrees that a fundamental review and centralisation of the rules on enforcement would be beneficial. The forms and orders used to communicate could be updated at the same time, for increased effectiveness. The report disagrees with the Association’s observation that enforcement need not necessarily be a court function, stating the necessity for judicial oversight. Before enforcement is commenced, every creditor must obtain a Judgment, so judicial oversight has already occurred. Some methods of enforcement will still require further judicial 40 November 2016 www.cicm.com The recognised standard
The Association fully supports the idea that enforcement should fall under the remit of a single, unified service, and agrees that a fundamental review and centralisation of the rules on enforcement would be beneficial. oversight, such as charging orders, but where enforcement is fundamentally an administrative process it is difficult to see why this needs to remain a court process. Having said that, we would always accept that there would need to be a mechanism for recourse to the court in the event of concerns being raised. Also, our view that enforcement could be outside of the court has largely arisen due to an historic inability of the court to provide an effective enforcement service. If the court is able to address that, then our members will be satisfied. We simply believe that outsourced enforcement is possible and could be considered. We are very pleased that the final report has been persuaded by the Association’s idea of shifting the onus of responsibility onto the Judgment debtor who cannot pay a forthwith Judgment. Our suggestion was that the Judgment Order should require more proactivity in engaging with the Judgment creditor, for example ordering the provision of income and expenditure information and a payment proposal. However, in the event that this was ignored, we do not share the report’s view that the next step would necessarily be committal. Rather, that could open up the route for better provision of information to the Judgment creditor. A persistently non-cooperating Judgment debtor should not be able to hide behind data protection legislation. There are provisions already in the statute book under the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) which could be introduced to supply information to the Judgment creditor from other sources once the Judgment debtor has demonstrated an unwillingness to cooperate. Whilst on the subject of the TCEA 2007, we believe that any review of enforcement should also consider the other measures already on the statute book, such as fixed deductions for Attachments of Earnings. The report ultimately seems reluctant to open enforcement of goods to High Court Enforcement Officers (HCEO), either for consumer contract regulated debts or those under £600. There is once again the suggestion of incorrect behaviour on the part of HCEOs. The Association is unaware of any evidence of this supposed incorrect behaviour and would welcome sight of it. We are sceptical it exists. We would also point out that private sector enforcement has worked effectively in the criminal courts for a long time and with minimal complaints. We are also aware of the substantial efforts made by HCEOs in recent times to ensure thorough training and correct behaviour, for example to identify and deal appropriately with vulnerable debtors. As regards debts under £600, the report suggests that High Court enforcement would be too expensive. There is no mention of economies of scale and the fact that the charges could be substantially lower if volume of work increased. The Association continues to strongly support consideration of the opening up of both of these areas to the HCEO. There are many ways in which appropriate safeguards could be implemented to deal with any remaining concerns. The report acknowledges that there are reasoned arguments for the above and also acknowledges that the work undertaken by Court Bailiffs can be subject to significant delay. The Association would point out that delay is not the only issue and repeats its longstanding concern that performance data regarding the work of County Court Bailiffs is currently extremely limited. The report notes that residential possession claims can be subject to particular concerns regarding treatment of the potentially vulnerable. We do not believe there is any basis for concern regarding the conduct of HCEO in that role, but this could obviously be closely monitored during a trial period. CONCLUSION While there are elements of the report which receive the Association’s full support, overall it has come as something of a disappointment and raises considerable concerns. In particular, there are no obvious advantages to our members in replacing the CCBC and CCMC for claims under £25,000, but there are considerable risks if the online court is less effective, either in the short or long term. The extension of a limited fixed recoverable costs regime for all claims up to £25,000 could further impact access to justice and increase expense to our members. Most disappointing is the absence of any early proposals for reform of enforcement. The Association would strongly urge that a full review of enforcement should be undertaken as soon as possible and that there should be a commitment that comprehensive enforcement reforms will be implemented at least at the same time, or preferably before, the introduction of the online court. Otherwise, this issue risks falling behind and being overlooked yet again. The Association continues to strongly support consideration of the opening up of both of these areas to the HCEO. There are many ways in which appropriate safeguards could be implemented to deal with any remaining concerns. The recognised standard www.cicm.com November 2016 41
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