In our second article reviewing the pending reforms to litigation procedure, we will consider how justice will be accessed under a reformed system.
This article might create a strong sense of déjà vu for any litigator because civil procedure has been here before. The briefest look at history shows that in the last 100 years there have been 63 reports and inquiries into the civil justice system. Most of these reports focused around three perennial problems of cost, delay and complexity. If you have been following the previous Journal articles on litigation, you will already know that the two most recent reports were: - 1) Lord Woolf’s report delivered in 1995, entitled ‘Access to Justice’; and 2) Lord Justice Jackson’s report from December 2009 on civil costs.
Access to justice under the current system
Having a system that can be accessed by ordinary members of the public is important. Civil courts are meant to provide a place for settling disputes and the means for individuals to exercise their legal rights.
Not only did the title of Lord Woolf’s report emphasise this point, when he wrote it, he said: - “My primary concern has been to improve access to justice, in particular for individuals and small businesses. I believe the key to this is enabling people to resolve their disputes in a more co- operative and less confrontational way than our traditional litigation system allows.”
The Civil Procedural Rule (CPR) based on his recommendation did move litigation away from an adversarial culture. There was an increase in out-of-court settlements, and it can be argued that the foundation for a better litigation culture had been laid.
Current changes
Regarding the current proposals due to be implemented in April 2013, there is a strong feeling in the legal profession that the positive steps made as a result of the Woolf reforms could be partially undone in years to come.
Consider the comments of the president of the Association of District Judges, Mr David Oldham, who said: - “Repeated rises in court fees are making civil law unaffordable – and the public are getting a worse service from the courts than when Lord Woolf published his landmark 1999 report ‘Access to Justice.’
With problems in the courts, this is what the Ministry of Justice Secretary, Kenneth Clarke, has said about civil justice:
“In civil justice, we have a system burdened by spiralling costs, slow court procedures, unnecessary litigation, and too limited an awareness of alternatives to court – all of which add to a fear of a compensation culture. In particular, our current system of legal aid too often encourages people to bring their problems before the courts, even when they are not the right place to provide good solutions and sometimes for litigation that people paying out of their own pocket would not have pursued.”
At face value his comments seem reasonable, but when he says our current system encourages people to bring their problems before the courts, I would argue it enables them. In effect he has confirmed that the government’s approach is to reduce access to justice. Whole areas of civil law are being taken out of the legal aid system, effectively ensuring that the least able will be barred from seeking justice. Legal aid will no longer be available for clinical negligence, employment, immigration and welfare benefits cases. It will also not be available for most debt cases, housing issues and education cases. Without proper legal funding such as legal aid, weak parties will be at the mercy of the stronger party.
It does seem that access to justice will be severely restricted under the reformed system. It may become the case that the parties with more money or better access to legal advice or the greater ability to take the risk of losing will be the beneficiaries of the reformed civil justice system.