Tribunal trials

Alan Murdie reports on the potential impact of Draft Tribunals, Courts and Enforcement Bill

The draft Tribunals, Courts and Enforcement Bill published on 25 July 2006 (Cmd 6885) proposes wide-ranging reforms which will have an impact on many specialist areas of legal advice and practice. Areas affected will include work in many tribunals, judicial review, landlord and tenant, insolvency and debt recovery, where extensive reform of the law is envisaged regarding the seizure of goods.

Tribunals

Part One of the Draft Bill proposes the re-organisation of tribunals into a uniform structure and system, following the results of the Legatt Commission.

The Bill creates new offices for the First-tier Tribunal and the Upper Tribunal into which the jurisdiction of many existing tribunals would be transferred. The Upper Tribunal would be a court of record, with a primarily appellate function, with a further right of appeal to the Court of Appeal. The plan is to unify the structure and operation of tribunals, with rule for tribunals being set by a new Tribunals Procedure Committee. Tribunals likely to be transferred would include those dealing with: income tax; social security; VAT; child support; special educational needs and disability; and consumer credit and pensions.

How a streamlined tribunal system serving the diverse needs of the child support and meat hygiene appellants will operate remains to be seen, but doubtless in time it will see the emergence of a standard tribunal rule book, similar to the Green and White Books, setting out civil court practice. The Lord Chancellor is given wide powers to transfer tribunal jurisdictions and functions, including functions exercised by Ministers and delegate certain powers. The Council on Tribunals is abolished and a council known as the Administrative Justice and Tribunals Council is to be established. The jurisdiction of employment, asylum and immigration tribunals and a number of local government tribunals will not be transferred. Awards of compensation and costs made by tribunals will become fully enforceable through the courts, tying in with reforms on enforcement.

The Upper Tribunal would be established to deal with some judicial review matters, where the case falls within a class specified by the Lord Chief Justice or is referred to the High Court. Clause 112 replaces the existing s 31(5) of the Supreme Court Act 1981, regarding the remitting of decisions to a tribunal by the High Court on judicial review. In future, the High Court can quash an erroneous decision of a tribunal and substitute its own decision if satisfied that, without the error, there was only one decision the tribunal could have reached.

Approved assessors and experts may be appointed in cases of 'special difficulty' by either the First-tier or Upper Tribunal. Certain tribunals already have a power to appoint an expert and this will continue, with the Lord Chancellor establishing panels of approved experts. A statutory basis for mediation to take place where appropriate in a particular jurisdiction is also put into law.

Judicial appointments

Part Two of the Bill revises the minimum eligibility requirements for judicial office. It also enables the pool of eligible persons to be extended to legal executives.

Enforcement against goods

Part Three of the Bill seeks to reform radically the enforcement of goods and is likely to prove the most controversial part of the Bill.

The Bill proposes the abolition of all common law rights and restrictions on distress and execution against goods. The new regime will extend to all money judgments by the High Court and County Court and sums recoverable before magistrates. Writs of fieri facias will be renamed writs of control and warrants of execution will become warrants of control. All types of bailiff will be replaced by individuals appointed and approved as 'enforcement agents', who will require a certificate to practice (existing certificates for rent will be transferred). While the government has been committed since 1998 to an overhaul of enforcement, a number of measures are likely to prove controversial. These include powers to force entry to premises under warrant, effectively bringing to an end the doctrine of 'An Englishman's home is his castle'.

With cl 53, the common law right to distrain for arrears of rent is abolished (a proposal made as long ago 1986 by the Law Commission in Law Com WP no 9 1986). Many statutory provisions for rent recovery enacted between 1689-2005 are also repealed in Sched 22. A new procedure for enforcing commercial rent arrears, known as commercial rent arrears recovery (CRAR) is introduced forming part of a new system of enforcement against goods.

Notes to the Bill maintain its provisions, engage the Convention rights of both debtors and creditors to a fair trial (Art 6, ECHR ), private life (Art 8, ECHR) and the protection of property (Art 1, ECHR). However, much will be dependent upon judicial interpretations of these rights and the County Court will continue in a supervisory role. While the retention of localised judicial scrutiny is welcome (an alternative measure proposed was the establishment of an agency or commission to oversee enforcement), some reluctance among district judges is to be expected. The Bill and the accompanying notes are also rather vague on the question of fees and how the system is likely to be funded. Unless the recovery system is cost-effective and those involved are properly recompensed, the reforms may not prove possible to implement.

Under Part IV of the Bill, changes are made to the enforcement of judgments and orders. Creditors will also be able to obtain more information on judgment debtors. The Bill will enable the High Court and County Court to request information from government departments and third parties, including banks and credit reference agencies. This is likely to stimulate controversy and amendment is likely.

A complex series of reforms to attachment of earnings of orders, administration orders, and the establishment of debt management schemes are also outlined. These will impact on the fields of debt recovery, money advice and insolvency. However, as with other aspects of the Bill, much will depend on the contents of the regulations that ultimately emerge.