Damages Act 1996 (The Discount Rate)

Jonathan Djanogly Excerpts

Tuesday 4th September 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

On 1 August 2012 the Ministry of Justice, the Scottish Government and the Department of Justice, Northern Ireland jointly published a consultation paper “Damages Act 1996: The discount rate—how should it be set?” (CP12/2012).

The paper seeks views on how the Lord Chancellor in relation to England and Wales, Scottish Ministers in relation to Scotland and the Department of Justice in Northern Ireland in relation to Northern Ireland should set the rate of return to be prescribed under section 1 of the Damages Act 1996.

The prescribed rate is taken into account by the court in determining the return to be expected from the investment of a sum awarded as damages for future pecuniary loss in actions for personal injury. This rate of return is referred to as “the discount rate” and is currently 2.5%.

The consultation period is 12 weeks from and including 1 August. Copies of the consultation paper have been placed in the Libraries of both Houses. The document is also available online at: www.justice.gov.uk/consultations.

Independently of this consultation and the review of the amount of the prescribed discount rate of which it forms part, the Ministry of Justice intends to issue a consultation paper in the autumn of 2012 to review the present legal basis for the setting of the rate in England and Wales. The consultation will seek views on whether the restrictions on the factors that can be taken into account in prescribing a rate under section 1 of the Damages Act 1996 are still appropriate.

Parliamentary Question 106221 (Family Courts)

Jonathan Djanogly Excerpts

Tuesday 4th September 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

The written answer given to the hon. Member for Birmingham Yardley (John Hemming) on 30 April 2012, Official Report, column 1158W, did not fully address the question that was asked. The hon. Member asked, pursuant to the answer of 25 April 2012, Official Report, column 920W, on family courts: expert evidence, if the Secretary of State would bring forward proposals to allow non-legally qualified people who are not party to the proceeding to refer expert reports in family proceedings to regulators.

The full answer is as follows:



The Government have no plans to bring forward proposals of this kind. The Government do not consider it necessary, since it is already possible for someone who is not a party to the proceedings to refer an expert’s report to regulators provided certain conditions are met.

The Family Procedure Rules 2010 permit a party to the proceedings, or that party’s legal representative acting on the party’s instructions, to communicate information to another person where necessary to enable the party to make and pursue a complaint against a person or body involved in the proceedings, which would include disclosing an expert’s report to another person for the purpose of pursuing a complaint about that expert. That person is then permitted (with the party’s permission) to disclose this information to another person (who may, for example, be the regulator) provided it is for the same purpose. Neither the person to whom the information is disclosed in the first instance, nor the person to whom it is subsequently disclosed, need be legally qualified. The relevant rules (FPR 12.75 (3) and 12.75 (1) (c)) are set out in part 12 of the Family Procedure Rules.

“Transforming Services in the Office of the Public Guardian: A Consultation”

Jonathan Djanogly Excerpts

Monday 3rd September 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

On 27 July, the Government published a consultation paper seeking views on our proposals to digitise the services provided by the Office of the Public Guardian (OPG). This consultation reinforces our commitment to implementing the “digital by default” approach in public services.

The OPG is currently undertaking a programme of reform that is designed to meet two key challenges. First, to reform its systems and processes in order to deal effectively and consistently with ever increasing demand to register lasting powers of attorney—a trend that is set to continue with the country’s ageing demographic. Secondly, to transform the way its services are delivered to the public in order to reduce bureaucracy, making its services to customers simpler, more efficient and more accessible. This will be achieved by making the majority of its services accessible online.

Our consultation paper, therefore, seeks views on the following issues:

The forms and application process for lasting powers of attorney;

The language used to explain legal responsibilities;

The role of certificate providers;

The process for registering lasting powers of attorney;

The role of named persons;

How confirmation is given that a lasting power of attorney has been registered;

The statutory waiting period for lasting powers of attorney;

Supervision of deputies;

Changing security bond provider;

Online payment of fees;

Access to the registers; and

Providing an “assisted digital” service.

The consultation will run until 19 October. Following this, it is our intention to make the necessary changes to enable the provisions to come into force in April 2013.

Copies of the consultation paper are available in the Libraries of both Houses, as well as in the Vote Office and Printed Paper Office. Copies are also available on the internet at: www.justice.gov.uk.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Civil Litigation and Funding Costs)

Jonathan Djanogly Excerpts

Tuesday 17th July 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

This statement amends the one I made on 10 July 2012, Official Report, column 20WS. The wording in relation to the sanctions under part 36 of the civil procedure rules (offers to settle), paragraph (i), contained a factual error, which has now been corrected.

On 24 May 2012, Official Report, column 94WS, I announced the Government’s implementation plans for the provisions under part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 relating to civil litigation funding and costs. The Government have now considered further advice from the Civil Justice Council and I can therefore set out further details of those provisions.

A regime of qualified one-way costs shifting (QOCS) is to be introduced in personal injury claims, so that claimants conducting their case properly will not have to pay towards defendants’ costs if the claim fails. Rules will be drafted on the following basis:

i. QOCS will apply to all claimants whatever their means; there is to be no financial test to determine eligibility;

ii. Subject to the provisions below, claimants who lose will not have to contribute towards defendants’ costs (there is to be no minimum payment by a losing claimant);

iii. QOCS protection would be lost if:

(a) the claim is found to be fraudulent on the balance of probabilities;

(b) the claimant has failed to beat a defendant’s “Part 36” offer to settle; or

(c) the case has been struck out where the claim discloses no reasonable cause of action or where it is otherwise an abuse of the court’s process (or is otherwise likely to obstruct the just disposal of the proceedings).

iv. The principles set out in part 36 of the civil procedure rules override QOCS, but only up to the level of damages recovered by the claimant;

v. QOCS protection would apply in relation to claims that are discontinued during proceedings (subject to iii(a) above); and

vi. QOCS protection would be allowed for all appeal proceedings as the requirement for permission to appeal controls unmeritorious appeals.

The Ministry of Justice is considering further the practicality of QOCS protection not applying to elements of a claim for personal injury that are pursued for the benefit of a third party (such as a property damage insurer or a credit hire provider) in respect of goods, services or indemnity provided by a third party to the claimant as a consequence of the accident.

The sanctions under part 36 of the civil procedure rules (offers to settle) are to be reformed on the following basis in order to encourage early settlement:

i. There is to be an additional amount to be paid by a defendant who does not accept a claimant’s offer to settle where the court gives judgment for the claimant that is at least as advantageous as an offer the claimant made to settle the claim. This additional sanction is to be calculated as 10% of damages where damages are in issue, and 10% of costs for non-damages claims;

ii. In mixed (damages and non-damages) claims, the sanction will be calculated as 10% of the damages element of the claim;

iii. However, the sanction under these provisions is to be subject to a tapering system for claims over £500,000 so that the maximum sanction is likely to be £75,000; and

iv. There would only be one sanction applicable for split trials.

The new rule on proportionality has been agreed by the Civil Procedure Rule Committee (CPRC), and the test is intended to control the costs of activity that is clearly disproportionate to the value, complexity and importance of the claim. The senior judiciary are considering revisions to the costs practice direction to give effect to the new rule.

Changes to the civil procedure rules (CPR) will be considered by the CPRC in the autumn, in order for the necessary changes to come into effect for April 2013. The Ministry of Justice will continue to engage with key stakeholders throughout the implementation stage and will also work closely with the senior judiciary on other aspects of Lord Justice Jackson’s reforms, which are due to come into effect at the same time. Updates are provided on the judiciary website at:

http://www.judiciary.gov.uk/publications-and-reports/review-of-civil-litigation-costs.

Inquests (Service Personnel Overseas)

Jonathan Djanogly Excerpts

Monday 16th July 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

My honourable friend the Minister for the Armed Forces and I wish to make the latest of our quarterly statements to the House giving details of the inquests of service personnel who have died overseas. When we make these statements, we remember all of our service personnel who have served, or are now serving, in Iraq and Afghanistan, and we reaffirm our lasting gratitude. We remember the families of those service personnel who have given their lives for their country in connection with the operations in Iraq and Afghanistan, and our thoughts are with them. We particularly remember the families of the 10 service personnel who have died since our last statement in May.

In this statement we are announcing the current status of inquests conducted by the Wiltshire and Swindon coroner, the Oxfordshire coroner, and other coroners in England and Wales. This statement gives the position at 8 July 2012.

To supplement this statement I have placed tables in the Libraries of the Houses. The tables include the status of all current cases and the date of death in each case. They display information about those cases where a board of inquiry or a service inquiry has been held.

The Ministry of Defence and the Ministry of Justice will continue working closely together, with the aim of improving our processes and continuing the Government’s support for the coroners who are conducting these inquests. We will also work closely with the new Chief Coroner, His Honour Judge Peter Thornton QC, when he takes up post in September. Once again we would take the opportunity to thank coroners, their staff, and everyone who is seeking to support families and provide information, throughout the inquest process and afterwards.

So that no backlog of inquests will develop, both Departments have provided funding for additional resources since October 2007. Before 1 September 2011, these resources were provided to the Wiltshire and Swindon coroner, Mr David Ridley, because RAF Lyneham, within his district, was the venue for the repatriation of service personnel. Following the transfer of repatriation ceremonies to RAF Brize Norton on 1 September 2011, we now also provide additional resources to the Oxfordshire coroner.

Current status of inquests

Since the last statement there have been seven inquests into the deaths of service personnel on operations in Iraq or Afghanistan. A total of 544 inquests have been held into the deaths of service personnel who have lost their lives in Iraq and Afghanistan, including 23 service personnel who died in the UK of their injuries. No formal inquest was held in three other cases. In two of these cases the deaths were taken into consideration during inquest proceedings for those who died in the same incident. In the third case, where the serviceman died of his injuries in Scotland, the Lord Advocate has decided not to hold a fatal accident inquiry.

Open inquests

Fatalities in Iraq and Afghanistan

There are currently 48 open inquests to be concluded into the deaths of service personnel who died in Afghanistan; 22 of these involve deaths in the last six months.

There is one remaining open inquest into deaths from operations in Iraq.

The Wiltshire and Swindon coroner has retained 11 of the remaining open inquests, the Oxfordshire coroner has retained 17, and 21 are being conducted by coroners closer to the next of kin. Hearing dates have been set in six cases.

Inquests into the deaths of service personnel who returned home injured

Six inquests remain to be held for service personnel who returned home injured and subsequently died of their injuries. One inquest date has been set. When continuing investigations into the remaining five cases are completed, they will be listed for hearing.

We shall continue to inform the House of progress.

“Charging Fees in Employment Tribunals and the Employment Appeal Tribunal” (Government Response)

Jonathan Djanogly Excerpts

Friday 13th July 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

I have today published the response to the consultation paper “Charging Fees in Employment Tribunals and the Employment Appeal Tribunal”. The response announces the proposed fee structure for these tribunals. The introduction of fees to these bodies will relieve pressure on the taxpayer by transferring some of the cost burden from taxpayers to users. It may also encourage parties to think through whether they might settle their disputes earlier and faster by using other less adversarial methods of dispute resolution, such as Acas conciliation, which will continue to be provided free to users.

These tribunals cost the taxpayer over £84 million per annum and currently no financial contribution is sought from parties. The Government think it is right that those who use the system should contribute towards the cost, in the same way as users of other parts of the justice system contribute to the costs of providing the service.

The consultation closed on the 6 March 2012 and 140 responses were received. The Government have considered carefully the points raised and has decided to introduce a fee at issue and before hearing as well as five application specific fees. The response document sets out the arguments brought forward by respondents and the Government’s consideration of those arguments in more detail. That document and associated impact assessments is available online at: www.justice.gov.uk.

We have decided to extend the existing HMCTS remissions system to protect access to justice for those using the employment tribunal and the Employment Appeal Tribunal. A number of concerns were raised in response to the consultation about the remissions system and how it will operate in light of the Government’s planned reform of the benefit system. It will be necessary to amend the remissions system for these changes and MOJ will therefore be undertaking a separate review of remissions.

Our aim will be to produce a single remissions system for courts and tribunals which is simpler to use, more cost efficient and better targeted to ensure that those who can afford to pay fees do so, while continuing to provide access to the courts and tribunal system to those who cannot. We will take into account the responses received to this consultation when we develop our proposals. A consultation will be published in autumn 2012 and respondents will have the opportunity to provide further comments at this point.

The consultation response document has been deposited in the Libraries of both Houses and we will now work towards implementation of the fee structure in the summer of 2013.

Third Parties (Rights Against Insurers) Act 2010

Jonathan Djanogly Excerpts

Thursday 12th July 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

In response to the written parliamentary question from the hon. Member for Aberdeen North (Mr Doran) about the commencement of the Third Parties (Rights against Insurers) Act 2010 (UIN 98039)—5 March 2012, Official Report, column 537W —I undertook to make a further statement before the summer recess.

The position remains that no date has yet been set to bring the Act into force. The Ministry of Justice is continuing to work with interested parties to prepare the way for commencement at the earliest practicable date. As stated in the report on the implementation of Law Commission proposals (HC 1900) presented by the Lord Chancellor to Parliament on 22 March 2012 this is unlikely to be until 2013.

I will make a further statement in the autumn.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Jonathan Djanogly Excerpts

Tuesday 10th July 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

On 24 May 2012, Official Report, column 94WS, I announced the Government’s implementation plans for the provisions under part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 relating to civil litigation funding and costs. The Government have now considered further advice from the Civil Justice Council and I can therefore set out further details of those provisions.

A regime of qualified one way costs shifting (QOCS) is to be introduced in personal injury claims, so that claimants conducting their case properly will not have to pay towards defendants’ costs if the claim fails. Rules will be drafted on the following basis:

i. QOCS will apply to all claimants whatever their means; there is to be no financial test to determine eligibility;

ii. Subject to the provisions below, claimants who lose will not have to contribute towards defendants’ costs (there is to be no minimum payment by a losing claimant);

iii. QOCS protection would be lost if:

(a) the claim is found to be fraudulent on the balance of probabilities;

(b) the claimant has failed to beat a defendant’s “part 36” offer to settle; or

(c) the case has been struck out where the claim discloses no reasonable cause of action or where it is otherwise an abuse of the court’s process (or is otherwise likely to obstruct the just disposal of the proceedings).

iv. The principles set out in part 36 of the civil procedure rules override QOCS, but only up to the level of damages recovered by the claimant;

v. QOCS protection would apply in relation to claims that are discontinued during proceedings (subject to iii(a) above); and

vi. QOCS protection would be allowed for all appeal proceedings as the requirement for permission to appeal controls unmeritorious appeals.

The Ministry of Justice is considering further the practicality of QOCS protection not applying to elements of a claim for personal injury that are pursued for the benefit of a third party (such as a property damage insurer or a credit hire provider) in respect of goods, services or indemnity provided by a third party to the claimant as a consequence of the accident.

The sanctions under part 36 of the civil procedure rules (offers to settle) are to be reformed on the following basis in order to encourage early settlement:

i. There is to be an additional sanction to be paid where judgment for the claimant is more advantageous than a defendant’s part 36 offer. This additional sanction is to be calculated as 10% of damages where damages are in issue, and 10% of costs for non-damages claims;

ii. In mixed (damages and non-damages) claims, the sanction will be calculated as 10% of the damages element of the claim;

iii. However, the sanction under these provisions is to be subject to a tapering system for claims over £500,000 so that the maximum sanction is likely to be £75,000; and

iv. There would only be one sanction applicable for split trials.

The new rule on proportionality has been agreed by the Civil Procedure Rule Committee (CPRC), and the test is intended to control the costs of activity that is clearly disproportionate to the value, complexity and importance of the claim. The senior judiciary are considering revisions to the costs practice direction to give effect to the new rule.

Changes to the civil procedure rules (CPR) will be considered by the CPRC in the autumn, in order for the necessary changes to come into effect for April 2013. The Ministry of Justice will continue to engage with key stakeholders throughout the implementation stage and will also work closely with the senior judiciary on other aspects of Lord Justice Jackson’s reforms, which are due to come into effect at the same time. Updates are provided on the judiciary website at:

http://www.judiciary.gov.uk/publications-and-reports/review-of-civil-litigation-costs

Justice Committee on Presumption of Death (Government Response)

Jonathan Djanogly Excerpts

Friday 6th July 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

I have today laid before Parliament a Command Paper setting out the response of the Ministry of Justice to the report of the Justice Committee on Presumption of Death (HC 1663) (Cm 8377).

In its report the Committee criticised the present law in England and Wales. The Committee recommended that better guidance should be made available to those left behind. The Committee also recommended that legislation should be introduced to create both a single statutory process to obtain a certificate of presumed death broadly equivalent to a death certificate and a new status of guardian of the affairs of a missing person.

The Ministry of Justice acknowledges the difficulties faced by those left behind when a person disappears; accepts the Committee’s recommendation that better guidance should be issued, and is working with others to prepare this. The Department also accepts the Committee’s proposal that a certificate of presumption of death should be created. The Government will introduce legislation to achieve this when parliamentary time permits. In relation to the Committee’s recommendation on guardianship, the Department considers that this area is complex and that further examination of the issues is required before any decision to legislate can properly be taken. The Department intends to ask the Law Commission to conduct a detailed project considering how best to effect this reform and is in discussions with them.

Legal Services Board and Office for Legal Complaints Triennial Reviews

Jonathan Djanogly Excerpts

Thursday 5th July 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

On Tuesday 10 January, I made a written statement to Parliament announcing the triennial reviews of the Legal Services Board and the Office for Legal Complaints. I am pleased to announce the conclusion of the reviews and publication of the report today.

Established in 2009, the Legal Services Board and the Office for Legal Complaints were formed, respectively, as the oversight regulator for the legal profession and the administrator of a new, independent and fair ombudsman scheme for service complaints against authorised persons, under the Legal Services Act 2007.

The reviews have concluded that there is a continuing role for both the Legal Services Board and the Office for Legal Complaints. The Legal Services Board should continue as an executive non-departmental public body and the Office for Legal Complaints as a statutory body. However, the next triennial review in 2015 will provide a good opportunity to revisit this, due to the considerable changes to the legal services market happening now and expected over the next three years. Both the Legal Services Board and the Office for Legal Complaints have excellent standards of corporate governance and the recommendations of the report are minor improvements to strengthen the openness and transparency of each body.

The triennial reviews have been carried out with the participation of a wide range of stakeholders and users, in addition to the bodies themselves. The reviews were publicised on my Department’s website and stakeholders were invited to contribute through a call for evidence and a series of meetings. In addition to the project board which oversaw the reviews, a critical friends group challenged the evidence used to make conclusions. Membership of this group included representation from the Cabinet Office, the National Audit Office and the Department for Business, Innovation and Skills. A peer reviewer also challenged the evidence for stage two of the reviews.

I am grateful to all who contributed to these triennial reviews. The final report has been placed in the Libraries of both Houses.