Thursday, 27 October 2011

It’s not too late to stop the implementation of the LASPO Bill

This week, I attended a Consumer Justice Alliance event at the House of Commons hosted by Andy Slaughter MP. It had a simple aim: ‘to inform Parliamentarians of the importance of access to justice for all’.

Simple, yes. Perhaps you’re thinking that it sounds a little dry, too? Far from it. The two hours that I spent at the House of Commons yesterday proved to be a moving reminder of what’s at stake when we talk about access to justice. Why? Because for all that the law can be complex, even obscure and rarefied, underlying its machinations are human lives.

This became very clear as I listened, with admiration, to the stories of two women whose husbands had been the victims of negligence. The first lady spoke of how her husband’s treatment in hospital had rendered him wheelchair-bound and brain damaged.  This was a cast-iron case of clinical negligence, with complicated legal and evidential issues. The lady had managed to secure sufficient compensation to ensure that her husband’s life was made tolerable, at least. The second woman’s husband had contracted mesothelioma, a form of cancer  caused by exposure to asbestos. This had been a particularly difficult claim, but ultimately resulted in success, so that, again, the man’s life was made tolerable.

Both women spoke with great dignity and power. That is not, though, the only thing that they had in common. What also united them is that neither would have been able to see their loved ones obtain justice if they were subject to the regime proposed by the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO), which is currently making its way through parliament.

The LASPO Bill has been much criticised, and no wonder. Many civil litigation claimants are presently only able to bring claims thanks to the ‘no win, no fee’ system in this country. However, the coalition government is intent on pushing LASPO through, so that, among other changes, recoverability of success fees and after the event insurance (ATE) – without which the risk of bringing a claim is often for the most vulnerable claimant  too great - will not be possible.

The government’s reasoning lies in the drive to combat what is perceived as ‘litigation culture’. The justice secretary, Ken Clarke, says the measures are necessary because the “civil justice system has got out of kilter”, resulting in “spiralling legal costs, slow court processes [and] unnecessary litigation”. With respect to Mr Clarke, so broad a brush statement misses the point. Under the current system, the rule is that costs follow the event. Legal costs are borne by the losing party, and claimants take out ATE insurance to pay the defendant's costs if the claim fails. Lawyers manage the risk of bringing claims via success fees, which are payable when they win. The LASPO Bill will do away with this, introducing a new scheme known as ‘qualified one-way cost shifting’, under which defendants will bear their own legal costs whatever the outcome.

The Consumer Justice Alliance has made its opposition to LASPO clear. The reforms are also opposed by the Law Society, the Bar Council and a  number of the costs judges in the High Court. All argue that far from facilitating access to justice – the key driver for civil litigation reform in recent years, ever since the Woolf Report – LASPO will mean that ordinary people are unable to bring claims. With no ATE insurance, and costs being funded from damages, they could easily end up out of pocket, even when their claims are as meritorious as for  those I encountered in the House of Commons.

There is no doubt in my mind that the implementation of LASPO could have a profoundly detrimental effect on access to justice. It is to be hoped that the moving testimony of women such as those whose accounts  I was privileged to hear yesterday reaches a wider audience, and that the government reigns in measures that are so clearly inimical to the ordinary citizen’s ability to seek redress when wronged.