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.
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