Ministry of Justice Breaches the Overriding Objective

Whilst the overriding objective includes five factors it is fundamental to ‘the procedural code’ that dealing with a case ‘justly’ includes ‘expeditiously and fairly’.

The savage cuts imposed by the MOJ, with very limited notice and no widespread consultation, will lead to ‘justice delayed’ which we had always understood meant ‘justice denied’. Let’s not over-complicate it: the simple and fundamental keystone for a functioning London FRC is that if NCDR fails and the parties need a judge, one will be available within a sensible timeframe.

If I were a cynic, I might suggest that the cuts are part of a cunning ploy by the MOJ to so significantly erode the delivery of justice in the London FRC that increasing numbers will turn their backs on the courts, thus justifying further cuts. However, I have no confidence that the MOJ, entrusted with delivering a functioning Courts Service, have the foresight to plan that far ahead. The criminal courts long succumbed to cuts that push trial dates into the distant future but we must not sleepwalk our way into joining them. We must not enable and empower the MOJ to rely on our response to these unjustified and unjustifiable cuts as evidence that the next budgetary round could reflect the need for fewer than six core and eleven overflow London FRC courts.

I know that for those of us already focused on delivering NCDR, private FDRs and arbitrations these changes will be seen as an opportunity, and we will be able to swiftly re-focus our cases; our clients are able to afford to pay for us to do so. This is not about the clients we represent, whose interests will be guarded by vigilant solicitors and counsel, but about everyone else and the long-term impact of these cuts on the justice system which we all signed up to participate in.

The one life event that most adults will experience is the breakup of a relationship. I suspect that unlike the NHS the average person on the Clapham Omnibus never even considers that one day they might need the services of the courts. Most hard-working people rarely, if ever, have any interaction with the Courts Service and the mechanism by which the State delivers justice to them, and for them. However, they pay their taxes and part of the social contract is an expectation that if they need to access the Courts Service and ask the State to intervene and assist it will be there for them.

It has been a long time since public funding was routinely available to parties in financial remedy claims, and courts and practitioners have worked very hard to accommodate and assist unrepresented parties. It is arguable that if public funding still existed, which was a loan rather than outright provision in many cases, there would be a reduction in unrepresented parties and a more efficient administration of justice, but that ship has not only sailed, it lies like the Titanic, wrecked on the ocean floor. Judges and practitioners were all asked to make it work and we did. However, crucial to making it work was that judges were available to efficiently manage cases, and final hearings were listed and maintained on a sensible timeline.

I am confident in my assumption that most families cannot easily afford to finance two properties whilst their financial remedy claims are being resolved. That is in complete contrast to those many of us represent, and yet we are still acutely aware of the emotional damage, stress and strain caused by delayed outcomes for our clients. I suspect that none of us can imagine, and the MOJ gave no thought to, what it will be like for separating parties/parents trapped in emotional and financial limbo desperately waiting for the courts to give them an answer. The most reasonable, decent party could be pushed to breaking point. What will the children in those households witness? How much more damage will be done to the lives of children and adults? Has the MOJ considered the likely increase in FLA 1996 and CA 1989 applications as the time between financial remedy application and resolution extends?

Whilst some of the delays in the delivery plan might, at first blush, appear modest, all the targets are subject to heavy caveat and a very liberal use of ‘best endeavours’. Given the savage cuts I struggle to understand how the four remaining London FRC courts will be able to meet those targets. If the targets are met, the timeline from issue to trial could be 22 months and I predict that will be extended. We know that the judges sitting in the London FRC are hard-working and leaders in this highly discretionary Division, but they are not machines hitherto sat with empty diaries able to accommodate this workload.

The most invidious element of what is euphemistically called ‘a delivery plan’ is the approach to final hearings. The financial and emotional strain on parties leading up to the trial is enormous. In my experience solicitors and counsel work intensely with our clients in the weeks leading to trial, but even with specialist, expert teams we witness the increasing strain on our clients; the finality of the fixed trial date is critical at this difficult time. The parties I ask you to think about will have no or limited legal support. They may be working full-time and/or caring for families and trying to prepare their case. The parties may be told with as little as two weeks’ notice to three days’ notice (!) that their trial has been pulled. Our clients will face significant financial consequences but cocooned by their team they will be fully supported to manage the deep disappointment, upset and frustration. The clients we never see, and I suspect only the judiciary ever see, will be left devastated and with their confidence in the Courts Service possibly fatally undermined.

For those at the MOJ lauding these cuts as further judicious encouragement to fully access NCDR I reflect on the law of unintended consequences. The more cases that progress through arbitration the less opportunity for the higher courts to assist with the legal guidelines/principles to be applied when weighing ‘all the circumstances.’ It is one of the long-identified drawbacks of NCDR, and there will be an acceleration of the slow but inevitable erosion of the body of case law on which we all rely. Oh, the irony… the push for transparency collides with the absence of court-based determinations and so there is far less to be transparent about!

Finally, two thoughts: Where is the Media? The same media organisations that pushed for transparency in the family courts and FRC have been remarkably silent. If these cuts were being imposed with this level of notice in any other public service provider there would be a media-led national outcry. Can one imagine if hospital trusts announced that every London hospital would be reducing 11 overflow operating theatres to zero and reducing the six remaining core theatres to four? There would be urgent questions in Parliament, and I suspect money would be found. Is there a sign that any single one of our London elected representatives has noticed these cuts?

I suspect that the reason the MOJ are confident that this will be imposed unremarked by the public, and most of us, is that we already have a two-tier justice system. Those of us with the time to notice are characterised as ‘the fat cats’ already enthusiastically participating in private FDRs and arbitrations; they foolishly hope we will see this as another opportunity to expand our private FDR and arbitration offerings, and because we can insulate our incomes, and more importantly our clients, we will walk on by.

It is important that we make it clear to the MOJ that whilst we will re-group with our well-funded clients and find a way to work through these savage cuts, limiting the impact on those we are privileged to represent, we oppose them. We are not grateful to the MOJ for offering us opportunity to exploit our flourishing NCDR practices: we are committed to delivering justice fairly and expeditiously ‘for all’ and we know that we need judges available ‘to all’ to ensure that happens. I hope the FLBA and Bar Council are planning how to make this clear, and what we can each do to support those about to enter the next round of budgetary negotiations.