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Where is the Love? A Lament to Justice

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About The Author

Rachel Dean (Regular Writer)

Rachel graduated from the University of Leicester with her LLB European Hons in 2010. She is now a trainee solicitor at Lockett Loveday McMahon in Manchester and is due to qualify in May 2016. Her interests lie predominantly in commercial law.

Under the previous Coalition Government, there were various changes to both the civil and criminal justice systems in the UK, many of them having the effect of reducing access, increasing cost and adding to a growing divide between rich and poor within our legal justice system. A far cry from the principles of Magna Carta and the consensus surrounding law and justice.

This article aims to assess a number of the key changes within the legal sector as a whole, and within litigation specifically to ask “Where is the Love” in our justice system.

The demise of Magna Carta

This week marks the 800th anniversary of Magna Carta, a charter agreed by King John of England in 1215 to provide swift access to justice, among other things. It is considered by many to be the founding doctrine of equality and freedom before the law and arguably remains the bedrock upon which the laws of this country have been built. The principle of equality before the law differentiated the UK – as it was then – from other countries, and made our justice system exemplary to many other nations. It is a constitutional principle in its own right.

The irony of this anniversary however is that our justice system now seems to be close to breaking point. Many of the principles once favoured so highly have been cast off by the last coalition Government and with David Cameron’s new exclusively Conservative Government (the first in 20 years) this trend looks set to continue. Have we lost the notions of justice that once made us such an example to the world?

May 2010 – The Coalition Government

With a few weeks now having passed since this year’s general election, it is interesting to note that little attention was given in either of the Conservative or Liberal Democrats’ policy documentation to access to justice in the run up to the 2010 General Election. There was emphasis on the criminal justice system, and on being tough on the crimes but very little was contained in their policies with regards the civil justice system.

Once in power, however, the Coalition got to work in many ways going against what the individual parties had claimed they would do, by closing courts across the country and scaling back legal aid funding. The last five years have been some of the toughest for those of us in the legal sector, both criminal and civil, and there is little to suggest that the new change in our governance this May will prompt a change to our justice system or an about turn from its current worrying conjecture.

1998 – The Woolf Reforms

It would be unfair to suggest that the future of justice has been on a continuing downturn. In 1998 Lord Woolf wrote his report on the then justice system, concluding that litigation was too slow, too expensive and too complicated. No surprise there! His reform suggestions prompted the Civil Procedure Rules, lovingly *cough cough* known by many litigators as the CPR. The ethos of these rules is summed up nicely in Rule 1.1, known as the Overriding Objective. It stipulates that lawyers should do all they can so that Courts may deal with cases justly and at proportionate cost.

It was hoped by Lord Woolf and others that these rules would lead to a civil justice system that delivered just and cost efficient results, treated litigants fairly and could be easily understood by those using it. He thought it was necessary to place the control in the hands of the courts who would then determine the timescale and directions of cases, imposing sanctions should these guidelines be ignored.

A chipping away at justice…

The Overriding Objective must be borne in mind by litigators and parties to litigation at all times, and also imposes an obligation on the Courts themselves. When one looks at the state of litigation as a whole today however, it seems some part of the objective of Woolf’s reforms and the meaning behind the CPR has been lost, or at least left at the wayside by the politicians at Westminster. The last few years have seen more cuts to provision of legal aid and more hikes in fees for accessing justice than ever before prompting the question – where is the love?

In 2013 the Government made cuts to legal aid which had a particular impact on family and criminal law, affecting both lawyers across the country doing that work, and their clients many of whom would have been the intended recipients of legal aid when it was first proposed and created. Whilst these areas of practice are outside the scope of this article, it is important to note that the changes to our justice system have had implications across the board (for a range of discussion on the topic of legal aid, see the Legal Aid ‘tag’ here on Keep Calm Talk Law).

Around the same time, employment claim fees were increased. Government statistics noted that there had been an 81% decrease in the number of claims between January and March 2014 compared to the same quarter in 2013.

It is possible that some bogus claims were deterred from being issued – one of the reasons given for increasing the fees – but there are still loopholes (for example a waiver of the fees for those on benefits) to make use of and arguably many more genuine employment claims will not have been issued because of the cost involved. The increased fees have only acted to expose the most vulnerable to unfair working practices, without recourse to adequate access to justice, and to reduce the opportunity for those employment lawyers who would have taken on such claims to do so.

2013 also saw the coming into force of many changes to civil justice and the CPR stemming from Jackson LJ’s review of the system. Many of these changes related to costs, funding, disclosure and part 36. Then in 2014 Conditional Fee Arrangements (CFA’s) were changed meaning that many civil litigation and personal injury clients were restricted in bringing claims because they could not raise the legal costs upfront.

Please do not get me wrong; I am not saying that the end of the traditional CFA was all bad. There were certainly genuine cases of abuse within the system which needed to be stopped, but it cannot be said that the same level of access to justice is available without the option of that method of funding for those who were using it appropriately. The possible candidates to step into the gap left by CFA’s are damages based agreements or fixed fee arrangements and possibly even crowdfunding, though the scope of this article unfortunately does not stretch to a discussion of these options.

The costs and relief implications of the Jackson reforms in the flesh were seen through the case of Mitchell and then the subsequent appeal cases including Denton in 2014, and kept many litigators awake at night. In brief, Mitchell’s solicitors faced a reduction in costs from £506,425 to around £6k as a sanction for failing to file a Precedent H form on time. They were refused relief at first instance and then again by the Court of Appeal causing shockwaves through the civil litigation community and prompting various commentary. The Court of Appeal subsequently relented somewhat, rephrasing the decision in Mitchell and allowing appeals in three cases. However, this has undoubtedly created in many litigators a new found reverence for court deadlines and directions. Therefore the question of proportionality, both on the part of the parties and the court continues to hang overhead. This has the potential in some cases of jeopardising both access to justice and timeliness of justice by way of expensive and unnecessary satellite litigation.

March this year saw further restrictions on access to justice through the change in the structure of Civil Court fees. This has subsequently affected both specified and unspecified monetary claims by requiring that any claimant with a claim over £10,000 now has to pay an issue fee of 5% of the value of the claim. In some cases this has meant that there is as much as a 600% increase in the issue fee needed to commence proceedings compared to the fee needed before the increase. This was fiercely criticised by the Law Society who issued a pre action protocol letter at the time and have since continued to pressure the Government on the issue as well as the wider civil justice issues discussed above.

Back to the Future 

In one way or another, the changes that have taken place over the last few years have affected and reduced the layperson’s access to justice in almost all spheres of law. This has, no doubt created a greater division between the rich and the poor: those who can afford to pay the increased Court and solicitor fees, and those who cannot.

There will be certainly more Litigants in Person (LiP’s) as the public represent themselves in legal matters in order to avoid paying twice: to the Courts and also to their lawyers. This will undoubtedly act to clog up the judicial system and complicate the role of solicitors and the Judge who may now also need to guide a significant proportion of LiPs through proceedings. It should also be recognised that this may lead to unfair decisions or even miscarriages of justice as unrepresented litigants have to navigate an unfamiliar court system: documents may be left out, facts may be misrepresented or indeed there is no lawyer willing to pursue pro bono.

Ironically, the recent increase in Court fees is thought to create an additional £120m for the Court service which will be used to improve the service. Maybe it would have been more effectively improved by maintaining the fee structure but assisting the litigators by way of dedicated Court counters and telephone help lines or online ‘chat’ forums which actually provide answers promptly. Practitioners will be all-too-familiar with the 10 minutes frequently wasted listening to Greensleaves and waiting for an adviser to answer!

With all the changes detailed above which have, to a greater or lesser extent restricted the access to justice for general society, there remains a question mark hanging over the future of civil justice in the UK. It is hoped that this new generation of lawyers will endeavour to uphold justice and hope that what Magna Carta strove to establish all those years ago can be retained, albeit changed, in the new landscape of UK law.

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Tagged: Constitution, Human Rights, Justice, Legal Aid

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