The Pro Bono Panel decided to undertake research on whether a “polluter pays” mechanism might be one of the ways of improving the incentives to address the two following issues:
(a) improving the quality of first-instance decision making, and
(b) improving state party compliance with tribunal rules and directions.
The panel undertook comparative research and reviewed previous recommendations on the introduction of such a mechanism in the UK, and why these had been unsuccessful. The panel then worked up a proposal, which differs from previous proposals in two ways:
(a) it is not linked to appeal outcomes, and
(b) it is formulated as a fee payable to HMCTS rather than as a costs order (its purpose being to reimburse HMCTS for the costs incurred in arranging the appeal).
A working group was established in Spring 2019 to get further feedback on the proposal. Members include tribunal judges, academics, lawyers, the Ministry of Justice and ombudsman schemes.