PUBLIC. CIVIL JUSTICE COMMITTEE Minutes of the meeting on 12 November 2013 at in the Old Bookshop, 113 Chancery Lane, London.

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1 Posted on Corporate Business on 11 December 2013 as approved by the Chair CIVIL JUSTICE COMMITTEE Minutes of the meeting on 12 November 2013 at in the Old Bookshop, 113 Chancery Lane, London Part 1 Present: Apologies In attendance David Marshall (Chair), Patrick Allen, Peter Causton, Keith Etherington, Nichola Evans, David Greene, Tony Guise, Juliet Herzog, Sophie Khan, Stephen Lawson, Paula Loughlin, Stephen Mason, Tim Smith, John Spencer, Phillip Tracey and Craig Underwood Peter Ellis, Michelle Penn, Richard Schaverien, Michael Williams. Michael Birtwistle, Civil Justice Policy Advisor (minutes 23-27) Steven Durno, Policy Advisor (minute 29) Flick Heron, Council and Board Administrator, Policy Officer Civil Litigation Robert Khan, Head of Law Reform (minutes 23-27) Joanna Kielty, Justice and Home Affairs Policy Advisor, Brussels Office (minute 28 - by phone) Claire Marsh, Event and Marketing Specialist (minute 27) Glossary of Abbreviations ABI Association of British Insurers APIL Association of Personal Injury Lawyers CFA Conditional Fee Agreement CCMCC County Court Money Claims Centre DBA Damages Based Agreement EU European Union HMCTS Her Majesty's Courts and Tribunals Service IT Information Technology LASPOA Legal Aid, Sentencing and Punishment of Offenders Act MoJ Ministry of Justice QOCS Qualified One Way Costs Shifting RTA Road Traffic Accident 23 ANNOUNCEMENTS AND DECLARATIONS OF INTERESTS There were no announcements or declarations of interests. 24 MINUTES OF 16 SEPTEMBER 2013 MEETING The Committee approved the Part 1 minutes of the 16 September 2013 meeting. 25 MATTERS ARISING Minute 11: Any Other Business - Salford CCMCC Stakeholders Group Keith Etherington said that since the peak just prior to 1 April 2013 in issued claims, the number of claims being handled at the Salford CCMCC had dropped considerably and they reported that 94% of work was dealt with within five days, with a current backlog of four days. The centre was still having difficulties with solicitors sending in items in duplicate, which accounted for 14% 14

2 of all items received, and stopping cheques. The Law Society had tried to publicise the issues to practitioners. There had been some improvement in solicitors stating in the subject line of s what documents were attached. The payment by account pilot was being extended with a view to launching the system in September The centre held regular brainstorming sessions to consider ways to improve processes. HMCTS would shortly be consulting on a proposal to discontinue acknowledgements of service and was reviewing the necessity of other stages of the claims process. There were plans to introduce a single county court from April 2014 and the necessary statutory instrument was expected in January. There were also concerns about many courts closing their counters and removing phone numbers from their websites and that court closures might follow. Closure of counters would cause problems for self represented litigants in particular; it was also a problem for family cases where emergency decisions might be needed outside working hours. It would be helpful to get an early indication of possible closures from court staff as this was an issue where local law societies could usefully campaign to keep local courts open, depending on local demographics. The Law Society should be alert to the possibility of a consultation on this matter in the new year. It was important to make the point to the Government that the purpose of the courts was to serve the public.. 26 REFORMING MESOTHELIOMA CLAIMS RESPONSE Michael Birtwistle presented the Law Society's response to the MoJ consultation on Reforming Mesothelioma Claims, which had resulted from discussions with Committee members and others including APIL. As an extension of time for filing the response had been obtained, the Law Society had also had the benefit of seeing other responses which had already been submitted, including those of APIL and the Mesothelioma Victims Support Group. The Law Society had agreed that it would be useful to have a specific pre-action protocol for mesothelioma claims but said that the one proposed, which was based on ABI proposals, was not appropriate. The response opposed the idea of setting up a claims portal for mesothelioma as the claims were too few and of too high value; and proposed that, as it was not always possible to produce a finalised witness statement at the start of a claim, an unsigned statement should be disclosed so that insurers could begin assessing their liability and engaging with the claimant, with any alterations following as soon as possible thereafter. The response had also opposed fixed recoverable costs due to the complexity of the claims and level of expertise required. Finally, the response opposed applying the LASPOA to mesothelioma claims and highlighted that a full review of the impact of doing so, which the government had committed to, had not yet been done and would take some time. 15

3 John Spencer, who had contributed to the response, said that it presented a balance of the mixed views put forward. Everyone wanted to speed up the mesothelioma claims process but some of the consultation proposals would have done the opposite. It was not known when the government would respond to the consultation replies. 27 CIVIL JUSTICE EVENTS UPDATE Claire Marsh said that two events had taken place recently: the Civil Justice Section Conference, with 37 attendees, and an event on commercial litigation, six months after LASPOA, with 83 attendees. It was planned to run about six roadshows in late 2014 and the Committee was invited to suggest themes. The Committee discussed when would be an appropriate time to run a further follow up to LASPOA and what format this should take. There was a balance to strike between reassuring the profession on their understanding of the new rules and running an event too soon after the previous one. Practical workshops were more popular, although the Section already covered this angle. Timetables and sanctions would be an important area to cover, along with the rules on what documents needed to be filed with applications. An event on the effects of LASPOA could also cover the new arrangements for the forthcoming Single County Court. Workshops on costs management and budgeting were being considered. Solicitors needed to realise that this could not be left to costs draughtsmen. would work on a plan for events to be held in Stephen Mason, as Chair of the Civil Justice Section, would be consulted, as would regional managers to ensure that there was no clash with local events. 28 FIVE YEAR EU JUSTICE AND HOME AFFAIRS PROGRAMME Joanna Kielty said that the European Commission was considering its future work programme, which would follow the European Parliamentary elections in 2014 and subsequent appointment of EU Commissioners. The Commission had consulted the Law Society as well as the UK Government. The Law Society had taken the opportunity in its response to a recent House of Lords consultation to highlight the importance of European civil justice measures. Joanna Kielty invited Committee members to submit any ideas for what should be included in the work programme and asked for volunteers for a consultation group. Peter Causton volunteered to contribute in relation to insurance contract law; Stephen Mason would help on civil procedure issues; and David Greene could comment on collective redress. Peter Causton/ Stephen Mason/ David Greene 16

4 29 JUDICIAL REVIEW: PROPOSALS FOR FURTHER REFORM Steven Durno presented the Law Society's response to the MoJ's consultation on further reform of judicial review. While the suggestion for a specialist Land and Planning Chamber was welcome, the response opposed the majority of proposals in the consultation. Particular areas of concern were changes to the test for standing for judicial review, which could prohibit interest groups and charities; and plans to reduce the work for which legal aid could be claimed, which would reduce the number of firms willing to take judicial review cases. The government's Joint Committee on Human Rights was reviewing the proposals and had called for evidence to be submitted by the end of November. The MoJ was expected to introduce a Bill in early 2014 to deal with issues that would need primary legislation. The Committee suggested that consideration be given to ways to combat the possible withdrawal of legal aid, such as CFAs or QOCS. 30 CHANCERY MODERNISATION REVIEW presented the Law Society's response to Briggs LJ's provisional report on modernising the Chancery Division, which several members of the Committee had contributed to. While many of the questions in the report were directed at firms, the response had highlighted the need to improve IT systems 31 RTA PORTAL MANAGEMENT INFORMATION drew the Committee's attention to the RTA Portal management information as at 31 August 2013 and the update to 30 September 2013 which had been circulated by . RTA Portal management information would be included as a standing agenda item during 2014 so that trends could be monitored. The information for August showed that few employers liability and public liability claims had been submitted during their first month in the portal; and that average general damages were increasing slightly. Flick Heron/ 32 INTELLECTUAL PROPERTY LAW WORKING PARTY UPDATE Peter Ellis had said that there was no update to give, currently, and that an update would be given in January COMMITTEE WORK PLANS introduced the Committee's work plan for the rest of 2013 and for The proposal to produce leaflets for selfrepresented litigants had been dropped as this was not the Law Society's role. Some guidance for solicitors acting for defendants against self-represented litigants had been included in a practice note and the subject could also be covered in guidance on unbundling services. 17

5 The Committee's main proactive work for 2014 would be to continue to monitor the civil justice reforms; to assess the continuing relationships between solicitors and counsel in the light of forthcoming changes to counsel's terms of business with solicitors; to continue work on legal expense insurance and freedom of choice of solicitor; and to lobby for an electronic system for court file management. Practice notes were still planned on QOCS, DBAs and costs management and budgeting as well as on relationships with counsel. A similar programme of events to 2013 was planned for ANY OTHER BUSINESS Joint Meeting with the Association of District Judges The Committee suggested that the agenda for the 21 January 2014 meeting with the Association of District Judges should include an item on consistency of approach to cost budgeting and provisional assessments. It might be necessary to include an item on relief from sanctions depending on the outcome of the Mitchell v News Group Newspapers case. Flick Heron Civil Justice Council Triennial Review would draft a response which was supportive of the current arrangements for the Civil Justice Council and circulate it to the Committee for comment. DATE OF NEXT MEETING 16 January Old Bookshop The meeting finished at Members could claim 2 hours CPD for the meeting. 18

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