Held to account
Three cases restore Patrick Allen’s faith in civil justice
There are few reasons to be cheerful as we survey the political and economic landscape in 2018, so it is heartening to reflect on three recent judgments from the bench that demonstrate how some parts of our civil justice system continue to function well. First, the extraordinary judgment in R (Unison) v Lord Chancellor  UKSC 51. This was a 7-0 decision of the Supreme Court, in which it considered the lawfulness of the rise in fees introduced by the government for claimants in the employment tribunal. The fees led to a 70% reduction in new cases.
Lord Reed, giving the lead judgment, emphasised the constitutional importance of the courts, the role of civil justice and the need for unimpeded access to the courts by the people. After citing Magna Carta (‘To no one will we sell, to no one deny or delay right or justice’), he said: ‘The courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced… In order for the courts to perform that role, people must in principle have unimpeded access to them… without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory… the election of Members of Parliament may become a meaningless charade.’
The judgment declared that the fees were an impediment to access to justice and unlawful, and the government is now in the embarrassing position of having to refund everyone who paid them.
In a further sideswipe, he declared that the notion that litigation was a private matter the outcome of which is of no consequence to the rest of us was ‘absurd’—citing Donoghue v Stevenson  AC 562.
The judgment has widespread implications. All past and future reforms of civil justice now need to pass the R (Unison) v Lord Chancellor test. Most of the LASPO (Legal Aid, Sentencing and Punishment of Offenders
Act 2012) reforms, such as those cutting legal aid scope and removing, reducing or fixing costs, making it harder for individual litigants to access the courts, would fail.
The proposed raising of the small claims limit would also appear to fail the test. The change is designed to make it harder to bring a claim, allegedly to combat fraud. But, like the tribunal fees (designed to weed out weak and frivolous claims but actually deterring 70% of all claims), the small claims hike will deter all claims not just allegedly fraudulent ones.
Arguably, the next round of Jackson reforms for fixed costs may fail the test if they adversely affect claimants with limited means and reward the insurers of defendants. Imposing fixed costs, which may bear no relation to actual costs, will reduce the resources available to a claimant to bring a case. This will make it more difficult to find lawyers to do the case, and a deduction from damages when the actual costs exceed the fixed cost will be another ‘impediment’ to access to justice. The massive court fees for issuing proceedings are also ripe for an R (Unison) v Lord Chancellor challenge.
The next case concerns bereavement damages, Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2)  EWCA Civ 1916. The claimant had enjoyed a long and stable relationship with the deceased, lasting 16 years. She was denied a statutory bereavement payment of £12,980 under s 1A, Fatal Accidents Act 1976 (FAA 1976) as she was not the wife or civil partner of the deceased.
Overturning Edis J at first instance, the Court of Appeal declared s 1A to be incompatible with Arts 8 and 14 of the European Convention on Human Rights (pursuant to s 4 of the Human Rights Act 1998).
The court could not actually award a bereavement payment, only issue a declaration of incompatibility. However, the decision sends an unmistakeable signal to the government that FAA 1976 must be amended urgently. It is a scandal that no action has been taken to implement the Law Commission’s recommendations in 1999 that the list of people entitled to a dependency claim be extended to include the deceased’s children, siblings and long-term partner. The Labour Government agreed, and the Civil Law Reform Bill 2009 would have done the trick but, in 2011, the Bill was dropped by the Coalition Government.
And finally, in RF v Secretary of State for Work and Pensions  EWHC 3375 (Admin), Mostyn J held that regulations that prevent people who, due to psychological distress cannot plan and follow a journey, from qualifying for higher rates of benefit are discriminatory, and quashed them. He said: ‘In my judgment, the 2017 regulations introduced criteria… which were blatantly discriminatory against those with mental health impairments and which cannot be objectively justified. The wish to save nearly £1bn a year at the expense of those with mental health impairments is not a reasonable foundation for passing this measure.’
The Department for Work and Pensions has confirmed that it will not appeal and all cases must now be reassessed. The claimants were supported by Disability Rights UK.
Holding the government to account
These cases demonstrate the vital importance of the courts in holding the government to account. The claimants were lucky to find supporters who could fund the litigation. However, for the health of our constitution and civil rights, we must ensure that impediments to justice are dismantled to ensure that such cases can continue to be brought before the courts.
This article first appeared on New Law Journal, February 2018.