GDP-ARgggghhhh! (The Legal Aid Agency’s guide to the GDPR)

headinhands by Alex Proimos on Flickr creative commons - thanks.

I know. A blog post in which the twin joys of legal aid and GDPR are combined in one glorious cluster of hideousness. I'm sorry. Two parallel universes collide and rip a hole in the fabric of reality, or at any rate in the carefully drawn timetable set by the judge.

What am I blithering on about?

So, the LAA have refreshed their guidance on all the essential stuff they won't pay for. On the revamped list is a post-GDPR special : because GDPR saw the abolition of fees for Subject Access Requests the LAA will no longer be paying for fees charged by police forces arising from orders for police disclosure.

Say whut?

I know. I know that an order for police disclosure is NOT. A. SUBJECT. ACCESS. REQUEST. It's an order of the court. It's not a request. And its not made by the subject of the data. It covers more than the data relating to the single subject in question - it will typically cover at least two subjects (two adult parties to litigation, say two parents) - but will often cover third parties who may not be the subject of or party to litigation. They may be ex partners, neighbours, informants, children, extended family members who are the victims or perpetrators (alleged or actual) of abuse or criminal behaviour.

Here it is in all its wrongheaded glory :

(page 58 of the Civil Finance Electronic Handbook (issue 2.7 effective 26 Mar 19), attributed at page 69 as all the fault of the GDPR)

An order for police disclosure may cover material which will take the police many hours to collate, burn, transcribe or otherwise organise and for which they are quite justified in charging an administrative fee (although a number of people have told me in the last month or so that these charges have become wildly varied in recent years, with some forces apparently using this as a bit of a money making exercise and charging top whack for carrying out such work).

So, you might say this is just a mini-cash generator for the police and we should just switch to SARs and make do. But they won't 'do' (at least in most cases they won't). Anyone who has ever made a SAR or seen the product of one will know that the material produced will be incomplete and rendered practically useless by the level of redaction. If Mrs Smith (the alleged victim let's say) made a SAR for all records relating to her she would receive everything about her but with all the information relating to Mr Smith, the alleged perpetrator of domestic abuse against her, blacked out or removed. She would receive potentially all sorts of information that wasn't needed, for example about that time ten years ago when she was robbed at the supermarket. To get the information about the Mr Smith side of the equation he'd have to make a SAR - and his would be missing everything about Mrs Smith. Marrying the two sets of documents up would be impossible, time consuming and frankly pointless. Although a SAR now has to be complied with in 30 days, which is comparable to the sort of time usually given to the police to comply with a disclosure order (usually 28 days), the end product would be either useless or would generate unpaid work and cause built in delay before anything meaningful could be made of the information produced (even assuming there are any unpaid lawyers on board to do it). If we were to operate on that basis one organisation would be paying its staff to pointlessly redact stuff so that others could spend time piecing the jigsaw back together again. Like trying to glue the stuff in the bottom of the shredding machine back together. And even if you pieced it together again you'd find that the witness statement of the third party that is crucial to working out whether the data subject (your litigant) is telling the truth is not included. And you are not entitled to it. Excellent.

What's more, if the hard pressed overworked and underfunded police have a bag full of court orders for police disclosure which attract a fee, and a bag full of SARs which don't - which do you think they are going to prioritise?

And another thing (I know, I'm getting out of breath now), what if the subject doesn't WANT to play ball because s/he knows that the information might in fact not be all that helpful to them? Can the court effectively compel a data subject to make a request? And then to disclose whatever comes back? And even if it can what should it do if the litigant sticks the preverbial two fingers up?

This does actually really matter. Because if the LAA won't pay the fee, the solicitors won't do the work of gathering the police disclosure because they can't pay the fee. It means that cases will stall. Hearings will be wasted. Decisions for children will be delayed. Costs will be run up (including ironically, costs which will be paid by the LAA as everyone has to troop back to court to formulate plan B and generally bemoan the brokenness of everything ... Steam will come out of many ears. Maybe in some cases the court will decide it must forge ahead with information that really is quite important. That's a worry too.

And it's worse, because the guidance is backdated and not everyone has yet spotted that this is a thing. So courts and solicitors are probably still happily drafting police disclosure orders and may later find that they have no way of claiming back the sometimes quite hefty fees charged by the police. That is a big problem for some firms who run on very very slender margins and cannot absorb this stuff.

There is already a significant strain on family courts caused by the numbers of litigants in person who are involved in private children matters. In a significant proportion there is no single solicitor to pass the buck to, and in those cases either the court will have to take a punt on a litigant being capable and trustworthy enough to liaise with the police disclosure unit, sort the fee with their ex, obtain the disclosure and faithfully distribute it all to the court and other side - or it will have to coordinate the gathering of disclosure itself. And deal with the ensuing chaos when one party, too broke to afford a lawyer, also can't pay their half of the eyewatering disclosure order (also a problem for a represented party where disclosure is partly paid for by the LAA if the unrepresented party can't make up their half).

The legal framework, for anyone who cares to delve into it (can't say I ever have before now), is that by means of FPR 28.2, CPR 46 has effect when considering costs in the Family Court. That rule makes clear that third parties (here, the relevant police force) should usually be indemnified as to their costs when ordered to make disclosure. Most police forces I know simply don't comply with orders until a fee is paid - they usually write to the court if they are unable to comply because no fee has been paid, asking for more time and hopefully nudging someone into paying, the court having already indicated in its order that the fee (whatever it is) should be split (usually equally). At some point the court may well have to determine this issue under the framework of CPR 46 in order to break the deadlock if the police won't disclose and the solicitors feel unable to pay out fees that they know won't be reimbursed.

But it really would be better for all if that could be avoided. So. Please. Could somebody tell the LAA that when the police are ordered by the court to make disclosure that is not work that is exempt from a fee on the basis that it's a SAR? Because it isn't a flipping SAR. And because this guidance is going to cause even bigger problems than we've already got. Perhaps everybody could tell the LAA about this by issuing a C2 to bring their cases back to court to sort it out, and the ensuing disbursements and advocacy fees might focus minds. I don't know what to suggest, there are so many small pointless battles to choose from. It's all a bit despair-making really...

Perhaps the LAA could revise their guidance and then encourage dialogue between police forces and family courts to try and provoke some transparent benchmarking of reasonable administrative fees so that at least when family judges are making orders they can give a realistic idea to the litigants how much they are likely to have to fork out (on top of court fees, hair strand test fees and all the rest), and can tailor disclosure orders to what is really a necessary expense and what is more dispensable? And so that the overall costs to the Legal Aid pot can be kept to a sensible minimum that does not interfere with the doing of justice?

 

Feature pic : head in hands by Alex Proimos on Flickr creative commons - thanks.

2018 off to a great start then

First day back at court today. It has not gone well so far...

Your correspondent is in the robing room quietly stewing, having arrived at nine o'clock for a ten o'clock hearing (halo in hand) that isn't in fact until noon. Courtserve : We Heart You. Hashtag NOT.

In truth it began to unravel long before then as I lay in bed shivering at midnight realising the radiators weren't working because they haven't been bled, and listening to the wind tear bits off my house like a child demolishing a lego build (house still standing this morning but it didn't sound like that at the time - there is a large tree-bush affair next to the garage that thumps loudly on it whenever its windy. It's right next to my window...)

And then even the emergency suit turned out to be too small. Can't imagine how that happened *cough*. I blame Cadbury's Roses.

So all in all my arrival here by 9 o'clock, with papers and wearing a suit that still buttons up was a pretty epic achievement. Needless to say I am overjoyed to find it a wasted journey.

As I sat down in the robing room to get some work done (hurrah for PCU Wifi which is now working in our court building), having carefully stretched my laptop charger across the floor from the in-floor plug bar to the not very close to it desk (especially positioned to create a trip hazard it seems - yes I have left my comment in the comments box pointing this out) an email pinged into my inbox. A DFJ is finding that the LAA are refusing to meet the costs of parents attending hearings unless there is an order directing their attendance. Yes, that is refusing to enable parents (who often have no income because they can't work and their benefits have been stopped when their kids were taken) to get to hearings at which their childrens' whole future is to be decided. Doesn't it make you just furious? Anyway, the solution to this is apparently to include a standard direction in CMOs now saying that parents must attend. This makes me even more grumpy than I ever so slightly was before receiving the email. FPR 27.3 provides that :

Unless the court directs otherwise a party shall attend a hearing or directions appointment of which that party has been given notice.

What is so difficult to understand there? Parents need to be at hearings about their children. They'd need to be there even if FPR 27.3 didn't exist and even if a kindly DFJ didn't try to help out by repeating the rule in all their orders (The LAA's own guidance acknowledges that travel expenses ought to be met by them and not the client - even where the client is a bit hopeless and loses their travel tickets). And that the LAA refuse to acknowledge this (they must know its true really - surely?) is a symptom of how our system has lost sight of the need to do real justice rather than just box tick or offer a ritual daily saving at the altar of proportionality.

Personally, I don't think we should pander to this computer says no mentality. We should challenge this nonsense and say THERE DOESN'T NEED TO BE AN ORDER YOU MUPPETS. Again and again until they get it.

Plus, if the LAA doesn't pay their travel expenses how will they ever get to stroke the stress-dog before their children are adopted?

2018, you suck so far.

Right, grump over. I'm off to write a book...

POSTSCRIPT :

The Civil Finance Electronic Handbook that I linked to above says this at page 72 (I hadn't spotted it before - I was looking at page 58) :

The rules for payment of funded client travel expenses differ depending on the situation.

  • Attendance at court: The funded clients travel expenses will be paid where it is reasonable for the client to attend court. The guidance states this is as a witness of fact and we would expect to see justification as to why this is considered reasonable. These same principles apply for third parties who are required to attend court as a witness of fact.
  • Travel to attend experts: These are paid where it was necessary for client to attend the expert and where the client cannot afford to pay for visiting the expert (the client is impecunious). When considering whether the costs should be allowed we would need to consider the cost of the travel, distance to the expert and the method of travel.

Where travel costs are payable we should consider the most reasonable form of travel, this is usually public transport. Any travel by taxi will require justification. [my emphasis]

The Costs Guidance referred to is here and that says that the costs of travel to court other than as a witness of fact will be assessed at the end of the case (page 7-8, 26-28). Although in places it appears to suggest that travel expenses other than as a wtiness of fact will never be payable, it does say this :

  1. The usual principles as to reasonableness and proportionality apply. If it was unreasonable for the client to attend the hearing in furtherance of his or her case, for example because the hearing was an interim hearing where the client’s presence was not strictly necessary, then the disbursements would not normally be allowed.

So on that basis the costs of attendance at a hearing other than a final hearing / to give evidence ARE claimable, but they have to be reasonable. There will of course be cases where it really isn't necessary for a client to attend a hearing, but they will be in my view pretty few and far between - which is no doubt why the FPR have, since the year dot, set out a default position that they should come to court.

If this really is a growing problem (and according to the grapevine I know it is) then I would like to think that someone will do something about it and challenge the LAA on their guidance. It's tough for solicitors if they are continually shelling out and then not being paid, but even tougher for clients whose solicitors say they can't afford to take the risk (I've met some of each, I don't criticise either). Perhaps one of the representative bodies can take this up with the LAA?

Right. Now it's time for my hearing.

Oh and by the way, the General Election has messed up Family Court reform…

Have been meaning to write a short post observing that the Prison & Courts Bill, which contained draft proposals to deal with the vexed issue of direct cross examination of alleged victims of d.v. by their alleged perpetrators and enabling provisions to allow the online court reform programme to move forward, has been ditched in light of the election.

That is to say, it is no longer going to be considered in this Parliament, and we will have to wait and see whether the new Government (either a "stronger and stablerer" May Government or some other sort of Government) has the time or inclination to put this back on the table. Once can foresee that other priorities such as the "Great Repeal Bill" might take priority (much like disguised compliance which means the exact opposite of what it says, this would be a Bill that would repeal one thing and enact a million others into our law, but hey), but it's difficult to tell what sort of space in the timetable will be left for other ongoing work. Other factors which increase the uncertainty are the increasingly frequent news articles speculating that our Lord Chancellor Liz Truss, who is of course responsible for this legislation, is not going to last much longer in that post.

So we will have to wait and see. But at best this means some delay in getting these reforms through. At worst it means they disappear into the long grass of Brexit.

For those who enjoy an exercise in futility you can read what I said about the Prison & Courts Bill when it was still a thing here, and what David Burrows said about it in a guest post here.