It was a pleasure to attend the Opening of the New Legal Year on 6th October 2016 hosted by the Liverpool Law Society at the very impressive Liverpool Town Hall.
For those of you who have to been to the venue I would strongly recommend a visit; from the external architecture to the internal grandeur of the Council Chamber, the experience was quite an eye opener (if you’re into that sort of thing).
During the Opening the Conkerton Memorial Lecture was given this year by the Rt. Hon. Lord Dyson. Having been called to the Bar in 1968 an being made bencher for Middle Temple in 1990 Lord Dyson was appointed as Lord Justice of Appeal in 2001 and the Justice of the Supreme Court in 2010 following which he was appointed Master of the Rolls with effect from 1st October 2012.
Lord Dyson’s lecture was entitled ‘Threats to Justice in the 21st Century’ during which he focused on the threats of ‘Access to Justice’ which he reminded us was a fundamental human right quoting Lord Diplock who said “In any civilised society the provision of access to justice … was a function of government to maintain”. Lord Dyson also quoted Sir William Shawcross who 68 years ago said “this would open the court doors freely to all persons who may wish to avail themselves of British justice without regard to the position as to their wealth or their ability to pay” which went on to become the Legal Aid and Assistance Act 1949 as put through by the then progressive government of Clement Attlee.
Lord Dyson opined that the most common threats to access to justice was the cost, delay and complexity of civil litigation; if these factors resulted in a legitimate claim not being pursued then this was too another injustice. Another form of injustice, Lord Dyson continued, was that of a successful litigant being unable to enforce any judgment obtained due to cost and delay. The conclusion of which could be the decline in civility of society where individuals may seek recompense through forms other than the law. The conclusion seems a little extreme but I suppose one could draw such if the situation was extended far enough.
In essence Lord Dyson was placing the threat to access to justice on funding issues (as well as the cost of litigation which is addressed below) namely the major reduction in Legal Aid through the various government reforms by both of the major political parties and the cost of civil litigation generally which he went on to say had a serious impact on many people’s ability to obtain access to justice particularly those in the middle of the wealth scale.
One proposal to override the funding issue was that of Contingent Legal Aid Funding (‘CLAF’), where by an individual would subscribe to an either government run scheme or private insurance scheme by way of a form of Before the Event Legal Expense Insurance. This was of particular interest as this could solve many issues in terms of funding. Unfortunately, I can imagine that the practicalities would be far from straightforward; i.e. who would be responsible for the fund? Would it be compulsory? Would there be a choice of provider? Could it be used for both the potential Claimant and Defendant, the Applicant and Respondent, the victim and accused and so on? Who would and how would they decide if the issues warranted the use of the policy/fund or would there be exemptions to the use much the same as the current and previous Legal Aid Rules?
At this stage I’m not entirely sure as to how seriously the option has been taken or whether any of the answers to the above questions have been investigated however this certainly does tick many of the boxes as an alternative to the current legal aid and funding problems.
Lord Dyson confirmed that a working committee had been established to explore the option of such a CLAF scheme and the report was due towards the end of the year; we wait with baited breath.
Lord Dyson then went on to the subject of the quantum of cost of litigation; the argument being that how can Joe Public be expected to pay the hourly rates claimed by both solicitors and barristers? This was felt by Lord Dyson to be a further threat to Access to Justice in that having been informed of the hourly rate form of retainer many potential claimant’s would simply be dissuaded by the shear level of the same. This was the cause of his belief that ‘fixed costs’ would be a better vehicle for all of the claims within the Fast Track and those in the ‘lower echelon’ of the Multi Track. Although Lord Dyson refrained from providing is thoughts on exactly what level these ‘lower echelons’ would amount to nor was there any mention of the potential levels of the fixed costs themselves, Lord Dyson did underline that those provided by Lord Jackson in January this year were simply by way of illustration only.
It was admitted that there were difficulties in such fixed fee options, such as solicitors refusing to take on a claim based on the level of fixed fees available if successful which would in turn not afford Access to Justice for the unfortunate victim and whilst he accepted this as a possibility this was not the intent.
He also admitted that this would have a ‘challenging’ impact on the businesses of solicitors but offered a suggestion that this could be overcome by having a ‘tighter and more spartan approach to case management and the conduct of hearings than they currently do’.
Lord Dyson suggested that the use of fixed costs schemes would negate the need for detailed/provisional assessment and any costs associated with the current requirement for Costs Budgeting which are both expensive and time consuming. At this point Lord Dyson felt it appropriate to lambast the profession of ‘Costs Litigants’ and even ‘Costs Law Reports’, which allegedly ‘did not exist in [his} day some 25 or 30 ago’ (Unfortunately the writer has been in this Cost Litigation profession for almost thirty years and can testify that the people who trained him had been in the same profession some twenty or thirty years previously! Therefore please accept my disagreement with the Rt. Hon. Lord).
Lord Dyson also dealt with the issue of Court fees associated with litigation stating that in his view ‘the court fees, until recently, went un-noticeable’. It was his view that with the lowering of litigation costs, including both solicitors and court fees, more of the public would be able to afford inclusion to court system and gain Access to Justice; a point which from an economics perspective is absolutely correct in theory but one wonders whether the practicalities will mirror the theory.
Finally, Lord Dyson covered the long recommended and implored vision of the use of IT within the court system as initially mentioned by Lord Wolf in the late nineties. Again I don’t think there was nor has been any dissenting voices to this recommendation however this is yet another example of the difference between theory and practice; almost twenty years have passed since Lord Wolf’s ambition and still we wait. In the writer’s opinion the issue is not one of consent, it is one of practicalities; the England and Wales Court system is unfortunately not limited to one or two buildings and would require a very expensive and cooperative project. This is a huge undertaking which on the basis of the current austerity measures the government has in place as well as the various different systems being used by each individual courts around the country, will require a vast amount of planning and drive; that is not to say it would be impossible but merely difficult until there is complete conviction to the implementation and benefits associated.
In conclusion, the writer found the views and opinions of the Rt. Hon Lord Dyson to be enlightening and in the most part agreeable (with the exception of his comments on Costs Litigators) if not at times utopian. I think all would agree that the implementation of the basic human right of Access to Justice for everyone is something all should strive for; unfortunately issues such as corporate profitability/greed, inefficiencies, inexperience and down-right intransigence will always mean that some will fall through the cracks. Whether that is in the form of an individual being represented by an ill-equipped and inexperienced fee earner due to the levels of costs not warranting a better litigant, whether it be a case of some individuals being put off and frightened by the entire process or anything in between, the idea of Access to Justice for all is a steep mountain to climb with a lot of hazards along the way. I like everyone will hope for the best but sadly expect something much less.
Mr Sam Thaker
Head of Costs – Call me anytime on 01925 909360