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Saturday, 19 April 2014

Saving Justice - The Book

When I first began this blog, idea was simply to talk about legal matters and to make them more accessible to non lawyers. That is still the idea. But over the last couple of years the one theme that has dominated the agenda has been access to justice. I have written more posts on this subject than most others put together.

And I am not alone.

In this book Patrick Torsney has gathered together the thoughts of 58 bloggers, including yours truly (!). It is available for free download in iTunes at

I would normally hesitate to use this blog to promote a book in which I appear but the issues that are raised cannot be ignored and mine is just one voice among many.

Across all of the blogs runs a theme of almost systematic dismantling of justice for ordinary people. That was the title of my own first comments on the subject.

The book goes far wider than my own area of civil justice.

We open with Gemma Blythe's thoughts on the Criminal Justice System. We end with @jaimerh354 who blogs as A view from the North . Both remind us of the fundamental importance of justice to us all. Gemma calls it the cotton that binds the fabric of our society together. A view from the North closes by warning of a Ministry of Justice which wants to build brand new conservatories on a house which is crumbling. Both make for powerful reading and they are just two among many.

In between we hear the thoughts and concerns of lawyers, academics, politicians, journalists and many others on the dangers of turning the our nation into a justice waste-land where the government knows the price of everything, the value of nothing

One thing will be immediately clear. This is nothing to do with lawyers complaining about loss of business. That is a myth put out by ministers to divert attention from the real issues. These are well argued and well researched thoughts from  those on the front line who are genuinely and passionately concerned about justice for all.

Neither is this a book by lawyers for lawyers.

As we approach an election it raises issues of massive importance, issues that should be addressed by any politician who expects to get the votes of ordinary people.

Congratulations to Patrick for the staggering work he has done collating such a powerful set of rants!

If you read never read a book on law again, read this!

Wednesday, 9 April 2014

Collapsing confidence in our civil justice system?

The shambolic state of our civil justice system following the infamous Mitchell decision has been highlighted by some powerful voices this week. 

Rod Evans, Past President of the Forum of Insurance Lawyers has echoed the thoughts of many, saying ‘we haven’t got a clue what we are doing’. Such is the level of uncertainty and fear felt from litigators on all sides. Speaking at the Westminster Legal Policy Forum he talked about ‘trip-wire’ litigation where the punishment does not fit the crime.

Now any reader of this blog will know that I am no fan of the insurance industry. But Rod Evans is absolutely right. There is now a culture of fear affecting claimants and defendants. The main cause of the fear is uncertainty. We just do not know when we might find ourselves struck out and facing a negligence claim for the most minor of errors. One extreme example is found in the standard multi-track directions which provide for deliver of a Trial Bundle – ‘not more than 7 and not less than 3 days before Trial.’ I know experienced litigators who have lost sleep through fear of delivering their bundle too early! Who is to say that is an unreasonable fear?

In the Mitchell case, the sanction imposed was to penalise the offending lawyers’ by restricting their entitlement to costs. The claim itself was not struck out. But the courts are routinely striking out entire claims, often where there is no sanction within an order or the rules.

This uncertainty is also making it virtually impossible for the parties to litigate in a spirit of co-operation. That is the point made by the London Litigators Association. They recently polled their membership. One response said –

 “There is a lack of co-operation amongst solicitors to sensibly extending deadlines, as it is seen as a chance to get your opponent possibly struck out. Hence, there is more game playing than sensible co-operation.”

Indeed, if there is a chance of getting your opponent struck out for a minor technicality you might owe it your client to be merciless, especially if you do not have a particularly strong case.

Against this background of chaos we are being told that court fees are going through the roof –

We are at risk of creating a civil justice system that is a laughing stock. This is leading to an alarming lack of confidence. There is already talk of leading litigation firms side stepping the courts and setting up their own arbitration schemes.

Maybe this is what the MOJ want. It would certainly save money if lawyers stopped using the courts to resolve civil disputes. But it is a sad day for us all if this happens – not least for the less wealthy litigants who can’t afford to use their own private arbitrators.

We need somebody to say enough is enough. We need some clear guidance from the Court of Appeal or the rules committee so that we have at least a glimmer of clarity.

Thursday, 3 April 2014

Justice at a price? What price?

On 22nd April we are to see a massive increase in fees payable by the parties in civil litigation cases. The levels of the increases are unprecedented and demonstrate the government’s contempt for civil justice.

So to commence a claim for damages between £5,000 and £15,000 the fee is £445, compared to the present fee of £245. In bigger cases the fees rise on a scale up to an eye watering £1920. The thinking behind the rise is to make the justice system become a profitable venture which is ultimately free from public finding. Justifying the rises, Shailesh Vara said –

“I am satisfied that we must press ahead. No one could seriously argue that it is right for the taxpayer to continue to subsidise those who use the courts, by underwriting, year after year, unplanned deficits in court income. We need to get on top of this problem once and for all.”

This is a staggering dismissal of the reasons we have a justice system. In any civilised society citizens should have equal access to justice regardless of whether they are wealthy. Fees of this nature will deter litigants. I hear some say that the fees will be paid up front by the lawyers so there is no real cost to the ordinary person. Lawyers will indeed help litigants but in the face of massive cuts over the last year or so most firms do not have the resources to bank roll fees like these. Clients can take out loan agreements and may recover the interest if they win. But why should they go into debt just to get access to the courts?

The reality is that we will see a big drop in the numbers of those who have funds to litigate. We have already seen this happen in Employment Tribunals. In 2013 fees were introduced for the first time, meaning that it can cost over £1,000 to take a claim to a hearing. The result has been a staggering 79% drop in the numbers of claims –

Most of those will be genuine victims who simply cannot afford justice.

We have also seen the very frightening spectre of similar fees for the poor and disabled who wish to appeal to Benefit Tribunals – most of which succeed –

We have a government which sees the price of justice but which has lost all sight of its value.

Justice is not commodity it is a right.

We’re coming to that time when various political parties come out with promises, in order to secure our votes. 

Will we see promises to reverse these and other attacks on the rights of ordinary people?

Tuesday, 1 April 2014

Me ranting about Grayling ranting about Judicial Review

Justice Minister, Chris Grayling has come out with his strongest attack yet, on the right to seek judicial review of government decisions.

In an outburst in which he shows no understanding of the workings of campaign groups he accuses them of pursuing cases by using ‘human shields’. That is a phrase that we associate with some of the most extreme dictators of recent years and should never appear in any discussion on people’s rights.

What he means is that a group brings an action in the name of an individual and then ‘rows in behind them’. If the case fails then there is no costs liability to the organization.

Does he think that such groups pursue claims for their own benefit?

I assume that he has in mind the action taken by ten disabled people to challenge the impact of the Bedroom Tax. This was supported by the leading housing charity Shelter which gave evidence –

Or maybe even the action taken by the Countryside Alliance in 2004 against the fox hunting ban –

Actions taken by political leaders normally affect a significant group of citizens. A campaigning organization supports that group and brings an action on their behalf. This avoids the need for thousands of separate actions. Shelter would not gain anything from the Bedroom Tax case. The only winners would have been the disabled tenants.

Judicial Review exists as a remedy in to ensure that the executive acts within the law. It has played a huge role in protecting the ordinary citizen against political excesses. It is not popular with politicians. Former Labour Home Secretary, David Blunkett famously threatened to curb the power of judges –

Distaste for judicial scrutiny crosses political lines. This is why Judicial Review is so important. It is not a question of judges overruling parliament. Courts cannot overrule legislation - apart from limited cases involving Europe. But ministers still have to act within their powers. If those powers are abused and people’s rights are affected then they must have an unfettered remedy to seek a judicial review.

Mr. Grayling goes on to limit human rights concerns to North Korea. On the assumption that this must be an April Fool I will resist further comment.

Monday, 24 March 2014

Concerning Jackson, Justice and an Eleusinian Mystery!

We are approaching the first anniversary of Lord Justice Jackson’s reforms of our civil justice system. Any reader of this blog will know that I have not been an enthusiastic supporter.

Today sees the first speech from the architect of the reforms at the Civil Justice Conference. He seems to acknowledge that the response is largely negative. But will say we will adjust in time. It is not entirely clear whether that is a prediction or an order. In view of some recent judicial decisions it is probably the latter. He says that the criticisms do not reflect a fair cross section of opinion. I have yet to meet anybody who is a fan of the ‘reforms’. 

Jackson will say that the objections really amount to no more than lawyers protecting their own interests –

 'Every stakeholder group seems to perceive the public interest as residing in a state of affairs which coincides with its own commercial interest,'

But the objections go far wider than this. It is a genuine concern that a victim of an Accident or of Clinical Negligence stands to lose up to 25% of part of their damages under the new rules on Conditional Fee Agreements. This represents a huge windfall for the insurance industry at the expense of victims. The commercial interests of lawyers are not directly affected. It is an issue of justice and not just money.

He also predicts that the cost of litigation will reduce. The evidence so far is that costs are going through the roof. Cost budgeting itself is becoming an expensive exercise. We are seeing a deluge of satellite litigation arising from the decision in Mitchell v News Group Newspapers Ltd. Litigators are spending more time looking at their diaries through fear of the catastrophic consequences of missing a deadline by a day –

He comments that litigation is a process and not an Eleusinian Mystery – apologies for the link but I thought it might save you a trip to Google to find out what on earth it means. To be honest I am not much the wiser. The only real myth here relates to the existence of a compensation culture.!!

We know that something is badly wrong when the Master of the Rolls can say -

There now has to be a shift away from exclusively focussing on doing justice in the individual case”. 

There are some glimmers of hope. Jackson himself seems uncomfortable with some of the judicial excesses following Mitchell and says that the parties should be able to agree reasonable variations in the court’s timetable. The changes are certainly here to stay but we can hope that new editions of the rules will see a softening in the courts’ approach. 

I have to say that there were some words of comfort from Lady Hale in the recent case of Dunhill v Burgin. This was not a Mitchell type case but she did say – ‘But in this
court we have to do our best to arrive at the right result and thus to allow
all relevant arguments to be deployed before us unless this would be unfair to an
opposing party.’

We haven’t heard the word fairness very much lately so maybe some cases need to get before the Supreme Court before sense will prevail. 


Friday, 14 March 2014

ABI v APIL - Rhetoric v Reality

The Association of British Insurers seems to have a habit of inviting confrontation.

Insurers got pretty well all they asked for from the government in relation to reductions in the amounts of legal costs recoverable by victims. An independent report from the Parliamentary Select Committee On Whiplash injuries strongly criticised the overly close relationship between insurance companies and the conservative led coalition government –

Despite this, the attacks on victims go on and on. Their policy spokesman, Rob Cummings, said this week that there was a ‘whiplash epidemic’. The parliamentary committee found in fact, that the numbers of claims were reducing. This rhetoric suggests that claims are fraudulent even though the ABI could not provide the parliamentary committee with any evidence of the scale of the ‘problem’. The truth is that only a tiny percentage of claims are fraudulent and they damage all of us who are involved in civil justice. We all want to see an end to them, but this is not achieved by these blanket attacks on claimant lawyers.

Mr Cummings then showed an alarming ignorance of the impact of recent reforms on access to justice. He said that there was no evidence that justice for ‘genuinely’ injured claimants was impeded (why the constant suggestion that the genuine are somehow a minority?).

Interestingly the President of the Association of Personal Injury Lawyers (APIL) suggests the opposite. Writing in the March edition of APIL’s PI Focus magazine Matthew Stockwell talks about ‘institutionalised’ cherry picking. What he means is that the new costs regime makes it commercially unviable for lawyers to take on risky cases, especially those with a lower value. Now that a chunk of the legal costs has to come from damages lawyers can only afford to take on those which will provide some return. He warns that many ‘genuine’ claimants are now at risk of falling into a ‘justice gap’. I bet the ABI won’t complain about that.

Matthew is right. We are seeing firm after firm decide that personal injury work is no longer viable. They are either closing or selling their work to other firms. I have no doubt that this will lead to a further reduction in the numbers of cases. This is the reality and it is happening as we speak.

This time next year; we will still hear insurers banging on about a compensation culture. 

But there will certainly be fewer lawyers for them to target..

Friday, 7 March 2014

Striking at the heart of injustice

Today sees the second day of action by criminal lawyers against the government’s cuts to Legal Aid and its resulting impact on Access to Justice.

Across England and Wales Solicitors and Barristers have stayed away from court hearings. there have been demonstrations outisde courts in Londion and nationwide.

Who would ever have thought that the day would come when lawyers would have to resort to this kind of action? Demonstrators include the brilliant actress Maxine Peake who is known and loved by us all as Martha Costello QC in Silk!

But in the face of a Government that does not listen and which has questionable priorities, what choice do they have. The proposed changes include huge cuts in pay. Solicitors’ will see an immediate cut of 8.75% rising to 15%. Barristers face similar cuts. Those who do this work are already among the lowest paid lawyers. Anybody who does Legal Aid work is doing so because the work is important to them. They work long and demanding hours for a relatively modest return. Most could earn far more if they decided to move into other areas of work. 

In fact a key demand is for equality for all before the courts regardless of wealth –

They warn of legal advice ‘deserts’ as firms are forced to close. This is something that I have blogged about before in relation to cut backs in legal aid –

This is not about lawyers complaining about losing fees. It is about doing what is right.

The response from the government and the media is that cuts have to be made and that we are all ‘in it together’. But it is really a question of priority. We find the money to spend on defence. According to a report in the Telegraph last year the government is committed to spending £60bn on defence in the next 10 years of which £38.5bn is on nuclear submarines –

The current spend on criminal legal aid is less than a drop in the ocean compared to that.  

We do have the money.

Martin Luther King once said –

“A nation that continues year after year to spend more money on military defence than on programs of social uplift is approaching spiritual doom.”

That is why I support the day of action.