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Report of the Select Committee on Civil Legal Proceedings 2015-16 PP 2016/0117 REPORT OF THE SELECT COMMITTEE ON CIVIL LEGAL PROCEEDINGS 2015-16 REPORT OF THE SELECT COMMITTEE ON CIVIL LEGAL PROCEEDINGS At the sitting of Tynwald Court on 12th February 2012 it was resolved - That a Select Committee of three Members be appointed with powers to take written and oral evidence under Sections 3 and 4 of the Tynwald Proceedings Act 1876, as amended, to examine the reasons for delays and deficiencies in respect of case management with regard to Civil Legal Proceedings, and to report with recommendations to the October 2012 sitting of Tynwald Court. The powers, privileges and immunities relating to the work of a committee of Tynwald are those conferred by sections 3 and 4 of the Tynwald Proceedings Act 1876, sections 1 to 4 of the Privileges of Tynwald (Publications) Act 1973 and sections 2 to 4 of the Tynwald Proceedings Act 1984. Committee Membership The Hon Steve Rodan SHK (Garff) Mr Tony Wild MLC (Mrs Brenda Cannell, formerly a member of the House of Keys, was a member of the Committee for most of the inquiry, until her resignation; She was replaced by Mr Steve Rodan SHK, Speaker of the House of Keys, who was appointed to the Committee on 17th November 2015; Mr John Houghton MHK was the Chairman of the Committee, but he was suspended from Tynwald on Tuesday 17th May 2016.) Copies of this Report may be obtained from the Tynwald Library, Legislative Buildings, Finch Road, Douglas IM1 3PW (Tel 01624 685520, Fax 01624 685522) or may be consulted at www.tynwald.org.im All correspondence with regard to this Report should be addressed to the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas IM1 3PW. Table of Contents I. INTRODUCTION............................................................................................. 1 II. THE INQUIRY ................................................................................................. 3 THE EVIDENCE 3 SCOPE OF THE INQUIRY 3 III. “PADDING” CASES ......................................................................................... 4 THE RESPONSES 5 COMMENT 7 IV. SCRUTINY OF CHARGING ............................................................................... 8 V. MEDIATION................................................................................................... 9 VI. COMMUNICATION AND COMPLAINTS ........................................................... 9 OPTIONS FOR PURSUING COMPLAINTS 10 Internal complaints .......................................................................................................................10 Conciliation by the Law Society.....................................................................................................10 Advocates’ Disciplinary Tribunal ...................................................................................................10 COMMENT 13 VII. CONCLUSION................................................................................................13 VIII. ANNEX .........................................................................................................15 ORAL EVIDENCE ...................................................................................................17 4TH FEBRUARY 2013 EVIDENCE OF MR T J C BARKER 19 7TH FEBRUARY 2014 EVIDENCE OF MRS S CRACKNELL EVIDENCE OF MR K GOLDIE 35 2ND MAY 2014 EVIDENCE OF MRS JANE O’ROURKE, CHIEF EXECUTIVE OF THE IOM LAW SOCIETY 83 WRITTEN EVIDENCE ...........................................................................................113 APPENDIX 1 LETTER FROM MRS JANE O’ROURKE, CHIEF EXECUTIVE OF THE IOM LAW SOCIETY 30TH MARCH 2012 115 APPENDIX 2 MEMORANDUM FROM THE ISLE OF MAN JUDICIARY 21ST MARCH 2012 125 APPENDIX 3 LETTER FROM MR STEPHEN CREGEEN, CHIEF REGISTRAR 26TH MARCH 2012 141 APPENDIX 4 LETTER FROM MRS JANE O’ROURKE, CHIEF EXECUTIVE OF THE IOM LAW SOCIETY 15TH MAY 2012 147 APPENDIX 5 LETTER FROM MR JOHN KENNISH, SECTION MANAGER/COSTS OFFICER, CIVIL LEGAL AID & LEGAL COSTS SECTION GENERAL REGISTRY 11TH MAY 2012 151 APPENDIX 6 LETTER FROM WENDY MONTGOMERIE CERTIFYING OFFICER, CIVIL LEGAL AID 11TH MAY 2012 159 To: The Hon. Clare M Christian MLC, President of Tynwald, and the Hon. Council and Keys in Tynwald assembled REPORT OF THE SELECT COMMITTEE ON CIVIL LEGAL PROCEEDINGS I. INTRODUCTION 1. This Committee was established as a result of reports of complaints made to Members, by constituents, about the legal process and the role of lawyers within the system. Its function was to examine areas where members of the public had expressed concerns which indicated a serious lack of confidence in the civil legal system, as result of the behaviour of advocates. 2. The Chairman of the Committee, Mr Houghton, claimed that he had over the years received a range of complaints from constituents about costs and delays. 3. In February 2012 Mr Houghton moved a motion to establish the Select Committee. He asked for a Committee: …to investigate the principal reasons why so many delays and difficulties occur in case management with civil legal proceedings, which regularly leads to many years of wasted time, and […] unnecessary additional cost. Such costs are incurred in the legal process, long before a case reaches the steps of a court and usually involves many hours of an advocate’s time, at great expense. […] I have assisted many constituents while they pursue civil legal cases over the years as, indeed, I know many other Hon. Members have done likewise. I have monitored the real frustration people have been faced with, whilst they 1 have been traumatised during the course of many years, and have paid advocates tens of thousands of pounds, which has duly led to financial hardship and left many of them in poor health as a result. In one recent case, I followed a constituent’s legal case, which has concluded after 10 years’ duration. The legal costs alone amounted to £60,000. I am quite sure that the respondents’ costs in the same case will have amounted to a similar figure also. What I am absolutely certain, Madam President, is that had this case been managed in a more proactive and efficient way, the case could have been resolved within 12 months, rather than 10 years and the legal costs would have amounted to a fraction of the final total. This particular case, as I have already stated, and many others, was settled out of court. It appears that when the evidence is finally established and/or proved, even in the simplest of scenarios, settlement is reached out of court. I have seen this frustrating situation repeated time and time again in dozens of cases I have been involved with.1 4. The Committee was appointed with the following remit: That a Select Committee of three Members be appointed with powers to take written and oral evidence under Sections 3 and 4 of the Tynwald Proceedings Act 1876, as amended, to examine the reasons for delays and deficiencies in respect of case management with regard to Civil Legal Proceedings, and to report with recommendations to the October 2012 sitting of Tynwald Court. 5. Mr Houghton was elected Chairman at the first meeting of the Committee. The Committee met on eight occasions. 6. Unfortunately, one member of the Committee (Mr Wild) was seriously ill in 2014 and the work of the Committee had to be suspended. Subsequently, another member of the Committee (Mrs Cannell) was bereaved and resigned for personal reasons. Mr Speaker was elected to the Committee on 17th November 2015. Mr Houghton was suspended from Tynwald on 17th May 2016. The Committee therefore finds itself unable to deal finally with all the issues which it planned to cover and in the circumstances it makes this report without recommendations. Mrs Cannell was not part of the process of agreeing this report, but we wish to recognise her work throughout the inquiry and thank her for her contribution. 1 Tynwald Hansard, 22 February 2012, p612 2 II. THE INQUIRY The evidence 7. An important part of the role of advocates is in managing expectations of clients and in explaining to them often unwelcome news, which may well be the result of complex technical arguments that are difficult to explain in simple terms. 8. The Committee received a range of submissions from members of the public, many of whom were known to the Chairman. Many of these related to cases which were either “live” or were matrimonial issues – and some of these family cases involved young children. For this reason, we have not published them or taken oral evidence on them. The Committee did, however, use the evidence to inform itself of the overall views among lay users of the court system about the advocates employed. 9. The Committee was careful when taking oral evidence to avoid running the risk of rehearing court cases or raising expectations about solving complaints in ways that are outside its powers. 10. We publish a list of those who have submitted written evidence in the Annex to this Report.2 We extend our thanks to all those who gave oral or written evidence. Scope of the inquiry 11. This inquiry was not intended to be a root and branch examination of the civil legal system. That is a technical matter which is outside the intended scope of this Select Committee. Instead, the Committee focused on the major complaints about the legal process, namely delay in achieving justice which, in turn, creates additional cost. The Committee approached its remit from the point of view of the general public and decided that its task was to identify the main areas of complaint both in the formal evidence and informally, by way of contacts with constituents
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