On the 16th November 2018 the Flexible Operating Hours (“FOH”) Pilots: Prospectus for Civil and Family Court Pilots was published. HM Courts and Tribunals Service (“HMCTS”) announced that early and late sittings will now be trialled over six months in civil and family courts in Manchester Civil Justice Centre and Brentford County Court, commencing in Spring 2019.
The FOH project was set up to look at options to use court facilities outside of the traditional working hours of 10.00 a.m. to 4.00 p.m. In October 2017 HMCTS had published a prospectus inviting feedback on the initial proposals and the current prospectus is said to have taken into account views received from legal professional and other court users. Of particular notes is the decision not to proceed with pilots in the Magistrates’ and Crown Courts because of the particular pressures that currently exist in the criminal jurisdiction.
The proposals all go hand in hand with the HMCTS’ initiative to invest more money into the court system in order to try and make it fit for purpose in the 21st century. The aim is to bring about a system that is “just, proportionate and accessible”.
The pilots are said to be based on a principle of people working different, but not extended hours. Three objectives are identified:
(1) To test whether operating courts and tribunals at different times of the day offers more open and accessible justice for citizens
(2) To evaluate the impact of FOH on professional and public court users, and public agencies working in the justice system
(3) To test whether FOH can provide a sustainable, scalable and efficient way of working across the justice system, including the context of wider changes made in the Reform Programme
The types of work that will be heard in the FOH court sessions include:
- First Hearing Direction and Appointment
- Financial dispute appointment
- Infant approval hearings
- Financial dispute resolution appointment
- Occasional urgent work which is sat at short notice – e.g. without notice non-molestation orders and urgent care applications
- Small Claims
- Housing Possession (subject to changes to the rota for provision of a duty solicitor)
- Chancery applications
- Part 8/Stage 3 RTA applications
The court day is likely to be spread over two to three sessions with different judges sitting in the separate sessions. Parties will be given the ability to opt to attend a normal court instead of a FOH hearing.
A small amount of funding, administered by the Legal Aid Agency, is to be made available for publicly funded professionals who will attend court outside of the hours of 9 a.m. to 5.30 p.m., although the precise details of these additional fees are not yet available.
At present, the “best assessment” of HMCTS is that the most likely court opening patterns in the future will include offering more flexible hours in a proportion of court rooms in certain types of courts (which are likely to be larger court sites with higher volumes of work).
An Evaluation Advisory Group has been set up which will include representatives from the judiciary, the Bar Council, the Law Society, Legal Aid Agency and HMCTS. The pilots are to be monitored by an independent evaluator and an evaluation framework will be published before the pilots begin. Approximately three months after the pilots have concluded a final evaluation report will be made available.
An overarching concern will be that the FOH will simply put an increasing strain upon an already creaking system. Furthermore, the arguments that extended opening hours may impact upon the work-life balance of a number of legal professionals are unlikely to go away any time soon. Undoubtedly, HMCTS will also be looking very carefully at the financial implications of extending court opening hours before a larger scale roll out of the scheme would be implemented.
My own view is that there is a need to improve access to justice for members of the public and we have to be cognisant of trying to work around people’s already busy lives. The proposal is worth exploring and I look forward to seeing the results of the evaluation report when it is published. However, and no doubt like a number of others, I less look forward to being at court at 7.00 p.m. on a regular basis!