By way of a summary, a key tension recognised by the Jackson Review back in 2010 was that, on one hand, access to justice is only possible if both parties to a case have adequate funding. But on the other hand, access to justice is also only possible if the cost of litigation is proportionate. If costs are disproportionate, then a deterrence effect takes hold and parties hesitate to bring, or even choose to discontinue, what may be perfectly valid claims (or decide not to maintain what may be perfectly valid defences). The risk brought about by high and unpredictable legal costs is that it becomes more difficult, and less appealing, to vindicate the rights granted us by law. Access to justice takes an inevitable hit.
Without wishing to oversimplify, the general philosophy behind Sir Rupert Jackson’s proposals to control costs was one of pre-emption—putting in place a regime that denies the chance of the parties to run up excessive bills in the first place. The proposals included: (1) providing for a general scheme of fixed recoverable costs (‘FRC’)—that is, a scheme where costs at a fixed level only can be recovered by a winning party from a losing party; and (2) imposing budgets for certain cases. Complementing this approach was the introduction of the requirement for judges to exercise case management powers stringently. One only need point to Mitchell v News Group Newspapers (2013) [noting also the gloss added by Denton v TH White (2014)]—where the breaching party was limited to recovering only court fees as a penalty for filing a costs budget just six days late—to appreciate the change of culture brought about by the Jackson reforms in terms of the new drive for efficiency in civil justice.
As for the new budgeting requirements, it’s worth noting how this has had a positive effect on discipline and transparency, ensuring lawyers now really think about how a case will progress and the costs involved. The problem is that budgets are, by their nature, rigid. Without the benefit of hindsight, budgets rarely provide for every contingency. The effect seems to be that claimants are now taking longer to issue claims, to ensure that they are as ready as they possibly can be. At one level this is difficult to criticise. But, as noted at the outset, a system that instils increased caution on the part of litigants, taken to an extreme, may not always be the best thing for access to justice either.
It was always envisaged by Jackson LJ (as he then was) that, eventually, some lower value multi-track cases would also pass from the costs management regime into an FRC regime. Armed with the experiences drawn from the implementation of the first tranche of reforms back in 2010, a further review was published concerning these issues back in July 2017. Key features of the proposals were that: (1) all recoverable costs in the Fast Track ought to fall into an FRC regime; and (2) a new track is to be created, known as the ‘Intermediate Track’, with expedited procedures for some claims worth up to £100,000 (here it is envisaged that the length of the trial should be no more than three days, there will be no more than two expert witnesses, and reputations/important points of public interest will not be at stake).
It will be interesting to see how these proposals are implemented and the effects that they have for the profession and access to justice in the coming months as pilot schemes get under way. For those cases falling into the FRC regime there are various ‘bands’ of complexity in the recommendations, within which cases will be allocated. Whilst the proposed figures of recoverable costs for each stage of the litigation process could have been worse, the key will be to ensure that cases are allocated to the various bands consistently and fairly. Access to justice may well be impeded if litigants sense a degree of arbitrariness in what will inevitably become these early case management decisions.
Indeed, inconsistency was one of the main complaints of the implementation of the first tranche of Jackson proposals—especially with the way in which judges were dealing with the requirement for case budgets up and down the country. The challenges posed by legal aid reforms are discussed separately below.
CFAs remain available as a method of funding litigation, but the windfall enjoyed by some claimant solicitors in recovering both base costs and success fees at the expense of defendants and their insurers is now no longer possible due to the amendments brought about by the Jackson Review’s recommendations. Recovery of ATE premiums and other additional liabilities has also been abolished. A legal representative can still charge a success fee under a CFA, but the parties themselves have to bear the costs of doing so.
One of the worse cases highlighted in the Jackson review to indicate the problem that existed before was as follows. A tripping case was defended by a major insurer, apparently with good reason, and only just lost. Damages totalled £9,028. The claimant’s costs (including 100% success fee and ATE insurance premium of £51,466) totalled £141,840. The Jackson Review recognised that, under the old CFA arrangements, there were benefits for claimant lawyers whose clients were provided with comprehensive funding and insulated from all risk of adverse costs. But those benefits had, according to Sir Rupert, been achieved at a massive, and disproportionate, cost.
Have the changes done enough? Briggs LJ, as he was then, noted in his Civil Courts Structure Review: Interim Report in December 2015 that, despite all the efforts made over the last fifteen years, the cost of legal representation in the civil courts, coupled with the risk of liability for a successful opponent’s costs, still make the conduct of small and medium-sized civil cases (other than for personal injuries on CFAs) by lawyers disproportionately expensive and unaffordable. There’s truth in this. Another practical consequence from the new rules (which prevent claimants from realising the 100% uplift) is that claimant firms now seem less likely to take risky cases to court than they did before, and this has had an impact on access to justice to some extent as well. But it should be noted that the converse may also be true: defendants, who had long complained about the prohibitive nature of the previous regime, now seem more likely to take low and medium risk cases to trial since the risk of shouldering all those extra costs under the previous system have been removed. I often find that, in the midst of these discussions, the ability for defendants to access justice as well as claimants can be overlooked. Looked at in the context of a broader rebalancing exercise then, the changes—whilst not perfect—seem to be heading in roughly the right direction.
Briggs LJ’s final report recommended the creation of an Online Court as part of a plethora of other measures designed to remedy the residual cost barriers facing access to justice discussed in the previous section. This is intended to be used by litigants mainly without the need for legal representation, but with minimal costs shifting where representation is used. Modern IT would enable court users, so the plan goes, to issue a claim without the assistance of lawyers by accessing online software, pre-designed to elicit the relevant information, evidence and documents necessary to enable the court to determine the claim.
The potential for technology to improve access to justice is in theory immense, in terms of both reducing costs and providing litigants with an accessible way to engage simply in a process which until relatively recently has been perceived to be the preserve of lawyers and legalese jargon. But, as ever, the proof will be in the end result. Only last month there were reports that the judiciary had threatened to withdraw from the Online Court pilot if there are “any further false claims or data” about the project from Her Majesty’s Court and Tribunals Service. And further thought will be needed, as Briggs LJ noted himself, to ensure the system caters for those who would be challenged by the need to communicate with the court by computer.
In terms of Artificial Intelligence, this is a fast evolving area. Only last year there was news of a group of students who had designed a programme which saw machines more accurately judge the outcome of PPI claims than human lawyers. Personally, I see a natural role for AI (in the foreseeable future) in the areas of disclosure and screening evidence. But even this would require a sea-change in thinking to get underway meaningfully. At any rate, such programmes may well speed up justice, but whether or not they will improve access to justice is more difficult to say.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force in 2013 and removed public funding for, broadly: most private family cases (except those involving evidenced domestic violence or child abuse); welfare benefits; most clinical negligence; employment; housing disputes (other than serious disrepair, homelessness or anti-social behaviour); debt; immigration; and education (except special needs cases). It seems to me that the cuts were neither beneficial nor proportionate, and have unacceptably impeded access to justice for a large group of who are, on any view, a collection of very vulnerable people. The Government is currently undertaking a review into the effects of these changes to the legal aid system. I envisage that, when published, it will probably make for very sore reading.
It seems the demise of civil legal aid has also fuelled a growing industry of professional McKenzie friends—paid, unqualified and unregulated advisers who help litigants in person through the court process. Whilst there should be a role for such advisers in increasing access to justice, their prevalence is now raising questions as to whether a firmer regulatory hand needs to be deployed, to ensure that there is a sufficient degree of quality in the advice they offer.
It’s incredibly important. When we point to the rule of law as a basic component of the British constitution, we tend to align the concept of law itself with other fundamental values such as freedom and justice. Pin-pointing the precise connection between these concepts can be controversial. But most would agree at the very least that the rule of law centres on standards of fairness and due process which create a framework, free of the arbitrary whims of government and officials. Within this framework the rights and duties we have in relation to one another can be fleshed out and enforced by independent courts, assisted by skilled lawyers.
Our system of justice depends upon barristers acting fearlessly, independently and competently, so as to further their clients’ best interests. But this is always subject to their duty to the court. Without a system based on the rule of law, the discussion above regarding ‘access to justice’ would make no sense: without the standards of fairness and due process which the rule of law demands, there would be little opportunity for ‘justice’ to be done, let alone for it to be ‘accessed’ by anyone at all.
Written by Benjamin Harrison.
Ben is a future pupil barrister at No.5 Chambers
*Bar Standard Board Report on Diversity at the Bar 2017 and 2015
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