Open justice? The closed doors of possession courts

The head of the civil justice system in England and Wales has written to judges reminding them that journalists can attend all public hearings after Bureau reporters were repeatedly blocked from possession courts.

Master of the Rolls Sir Geoffrey Vos intervened after the Bureau informed his office that journalists were regularly barred from entering courts over the course of two months of reporting.

Rules state possession hearings should normally be held in public.

Little data is published on the details of possession hearings – the court cases where judges decide whether landlords or mortgage lenders can move to evict tenants and homeowners. So the Bureau sent reporters out to 30 possession courts across England and Wales on 110 occasions over the summer. However, six of those attempts ended with judges refusing to let journalists into their courtrooms, some claiming, incorrectly, that all such hearings are private. On two additional occasions the reporters were initially barred from entering the court building at all – once on the orders of a judge, the other by court staff.

When reporters were allowed into court, lawyers for mortgage lenders regularly objected to their presence and attempted to have details of cases blocked from publication.

A trade association for the finance industry wrote to a senior member of the judiciary asking about the Bureau’s project, citing “nervousness” about the “reputational risks” to banks of public attention on these hearings.

The project exposed the myriad barriers and confusions surrounding reporting on a critical part of the judicial system. In numerous cases, lawyers and judges remarked that they had never seen a journalist in these courts before.

Alex Cunningham, Labour’s shadow minister for courts and sentencing, said: “Open justice is just a slogan unless we ensure the freedom of the press to report on public court proceedings. The Tories said that no one would lose their home as a result of coronavirus, but because of reporting from possession proceedings we know that isn’t true. The Master of the Rolls is right to remind judges of the current guidance, denying journalists access to public hearings is unacceptable.”

Despite the issues, reporters logged the cases of 683 hearings, revealing the extent to which both private and social landlords, as well as mortgage providers, were pursuing claims in the courts in England and Wales. The Bureau found that at least one in 10 cases it investigated involved children or the defendant facing issues with their benefit payments.

Today, the Bureau will present details about the challenges the project faced to the House of Commons justice select committee’s Open Justice inquiry, which is exploring barriers to court reporting.

Financial privacy vs public interest

Possession hearings are open to the public as default, and have been since changes were made to civil court procedures in England and Wales in 2019. A judge can only rule they be held in private in particular instances and if justice cannot be achieved any other way. The office of the Master of the Rolls told the Bureau: “The general position that hearings are public remains applicable in possession hearings.”

Over two months the Bureau logged seven occasions when reporters were stopped from attending any hearings at all, in six of those they were told, incorrectly, that hearings were always held in private.

In one instance, a judge at a London court said he would not allow our reporter in without a signed and stamped letter from the top regional judge.

In Birmingham, the Bureau’s reporter was blocked from sitting in on hearings because Covid-19 precautions meant the size of the room was only suitable for three people other than the judge – a rule that would have been breached if both the landlord and tenant had turned up with legal representation.

The source of disagreement was often over the wording of the civil procedure rules – updated in 2019 – which state that hearings should be public and can only be ruled private in certain circumstances. One of these includes where there is “confidential information (including information relating to personal financial matters)”. Some judges took this to mean all hearings should be private – as all hearings would likely include details of rent or mortgage arrears. However, this is not the case – as confirmed to the Bureau by senior members of the judiciary.

The Bureau reporters were often only allowed into hearings after appealing to more senior judges. One noted – after one such communication – that a lack of proper oversight of judicial decisions was a “hallmark of despotic regimes”.

Objection!

In just under a fifth of the mortgage hearings logged, lawyers for the lenders raised objections to journalists being in the room. Most of the objections came from lawyers representing Bank of Scotland – 12 objections in all.

In one instance, a lawyer working for Bank of Scotland withdrew their cases from the court schedule, aiming to relist them at a time when they could put in a formal request to have the hearings in private.

Another lawyer for Bank of Scotland handed all witness statements and exhibits to the judge as written documents, rather than mention the details aloud in court, meaning the details could not be logged.

Lloyds Banking Group, which includes Bank of Scotland, told the Bureau it believes it is in the public interest to allow media access to these hearings. The Group added that it had been told of confusion among their lawyers. It had then sent, a month into the project, a message to its lawyers, telling them not to object to reporters’ presence in court. The wording of the message, seen by the Bureau, suggested that permission had only been sanctioned for the length of the project. In addition, it suggested that reporting was only permitted if no names or financial details were reported.

In some cases judges agreed with lawyers representing banks and ejected reporters from their courtrooms, without issuing any specific order, despite that being mandated in the practice directions. In other cases, judges asked journalists to withhold the reporting of certain information – again without a specific order or formal reporting restrictions. A formal reporting restriction order was handed down on only one hearing attended by the Bureau.

The main trade association for the banking and financial services industry, UK Finance, wrote to senior officials in the judiciary to raise questions about the nature and scope of the project, saying: “Media attention on possessions causes nervousness amongst mortgage lenders given the reputational risks.” UK Finance also wrote to the Legal Education Foundation, which funded this project.

UK Finance told the Bureau: “UK Finance did not object to journalists attending court proceedings, nor did we ever seek to have them excluded from court.” UK Finance added that it had offered industry data on the low level of possessions and support to the Bureau for its investigation.

Dearth of data

The Bureau undertook the possession court reporting project after realising that no official data is collected on who attends possession hearings in England and Wales, nor on their circumstances. This lack of statistics includes all protected characteristics, such as ethnicity.

A freedom of information request to the Ministry of Justice about those who take up legal aid funding for their possession hearings showed that Black people were disproportionately represented. This suggests they might be facing additional housing struggles.

The Bureau’s dataset provided other insights into who was facing housing issues, revealing:

• In one in 10 of the cases that came before court, the defendants mentioned having children.

• The same number (10%) mentioned having had issues with benefit payments.

• In 31 hearings, the defendant mentioned being disabled or having a disability.

• In 50 hearings, mental health issues were raised.

• In six hearings, defendants said they’d had immigration issues.

Next year Her Majesty’s Court and Tribunal Service (HMCTS) will launch a possession reform project, with the aim of exploring and enhancing the data that is collected about court users.

Are the changes working?

Beyond exploring those whose housing situation had been most impacted by the pandemic, the Bureau also set out to look into how changes made to the legal system, to deal with the crisis, were working.

A new step in the legal process – a review hearing – was introduced with the hope that landlords and tenants would get legal advice early and avoid a protracted court battle. But lawyers and judges told the Bureau that review hearings were not working: they were rarely attended and often just delayed proceedings, causing debts to mount up further.

Data obtained under freedom of information law from the Ministry of Justice showed that in the majority of courts (72%), only two people or fewer a month had accessed legal aid funding for a review hearing.

A survey by academic Lisa Whitehouse delivered similar findings: most of the 36 lawyers who responded said they rarely saw the tenant attend a review hearing and that the vast majority of cases ended up going to court anyway.

The Rental Mediation Scheme pilot in England and Wales was equally ineffective.

The pilot scheme aimed to get landlords and tenants together with a trained mediator, to sort out their case without a court hearing. But the Bureau discovered that only eight mediations had been held from February to June, in which time roughly £130,000 (excluding VAT) was spent predominantly on set-up costs.

The Bureau understands a further three cases were taken in July. Less than half of all sessions run in the first six months of the pilot resulted in any kind of settlement.

Both the Housing Law Practitioners Association and the National Residential Landlords Association told the Bureau that the pilot had been badly planned and was doomed to fail, given that mediation was offered so late into the judicial process.

The pilot ended on 31 October, but the Ministry of Justice said it believes “dispute resolution, including mediation, will have a key role to play in a reformed private rented sector in the future” and elsewhere, the government has clearly signalled that it plans to push mediation services as part of the judicial system in the future.

Without the Bureau’s on-the-ground reporting and freedom of information requests, there would be no public data on if and how these new schemes have worked.

A spokesperson for HMCTS said: “We are committed to the principle of open justice and transparency. Where operational issues are brought to our attention we work swiftly to resolve them.”