As our justice system becomes increasingly out of reach for all but the wealthiest, the Bach Commission asks what needs to change to improve access to justice?
Posted on 25th May 2016
The current lack of access to justice in the UK is alarming. Polling of adults in England and Wales by Citizens’ Advice shows that only 39% believe the justice system works well for citizens and only 17% believe it’s easy for people on low incomes to access justice.
Earlier this year the problem was highlighted by the Labour Party which announced the creation of an access to justice commission, chaired by shadow justice minister, Lord Bach. The party acknowledged that reforms made by successive governments have left too many people without access to legal advice and representation and began a review that will feed back into party policy, and, it is hoped, gain cross-party support.
The Commission’s starting point is that access to justice is an essential public service, equal in importance to healthcare or education. Lord Bach invited interested parties to submit evidence to the review in a consultation that closed at the end of April.
As a firm we have huge concerns about the state of access to justice in this country. A considerable number of people no longer have access to a solicitor due to the lack of funding available. They are therefore forced to bring or defend their own case – an incredibly difficult and gruelling task – or to take the decision to leave unchallenged the injustice they have endured.
How did the justice system reach this point?
Annihilation of legal aid funding
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) excluded whole areas of law from legal aid funding. Some social housing matters, professional negligence, most immigration and asylum cases, clinical negligence and private family law cases (where there is no element of domestic abuse) and welfare benefit cases are no longer in scope, amongst many other areas.
Even in those areas of the law where legal aid remains, such as in actions against the police, the scope of eligible cases has been narrowed considerably. A recent Court of Appeal judgment (Sisangia v Director of Legal Aid Casework) found that where an abuse of power is committed by a public authority, the act has to be shown to have been deliberate and dishonest, which can be an extremely high hurdle to reach and in any event, excludes any technical breaches of power, notwithstanding the impact this may have had on the individual. This case is an HJA case and we have sought permission to appeal to the Supreme Court as it is our contention that the Lord Justices have misunderstood and misinterpreted the law.
The financial eligibility limits for legal aid are incredibly low. To qualify for assistance with the cost of the pre-issue / investigative stage of a case, an individual cannot earn more, in disposable income, than £733 per month or have more than £8000 in disposable capital. For cases that are due to be issued, even those earning as little as £316 per month, in disposable income, are likely to have to make a contribution to their legal fees. Unfortunately, ‘disposable income’ does not equate to disposable income in real terms: unavoidable costs such as council tax, electricity and heating bills and food, for instance, are considered as being part of an individual’s disposable income. This serves to artificially reduce an individual’s actual disposable income even further.
Of course, the financial eligibility test is not the only gateway to legal aid, cases must also meet the merits test and proportionality test. The manner in which the Legal Aid Agency applies the proportionality test suggests that, although they have the discretion to take non-financial remedies into account, in reality it is the ratio of damages to legal costs which appears to be central to the decision to grant funding. For cases against public authorities, such as cases of false imprisonment or assault, damages can be very low and therefore legal aid is often denied on this basis. This is despite the fact that the case may have had a significant impact on the client or be of real constitutional importance.
The shortcomings of Conditional Fee Agreements and After-The-Event insurance policies
Conditional Fee Agreements (CFAs) are often highlighted by the Government as the way to fill the gap left by cuts to legal aid; they do not. Following LASPO, CFAs are not only far less financially viable than they used to be, but unsuitable in cases where there is no personal injury. Solicitors can no longer recover success fees, which compensate for the risk of losing the case and getting paid nothing at all, from defendants. Rather these can now only be claimed out of the damages recovered by the claimant, capped at 25% for personal injury general damages. In low value yet constitutionally important cases, the majority of the cases run by our civil liberties team, the success fee now amounts to a tiny sum, and does not come close to compensating for the risk of getting paid nothing for what is often years’ of work.
More significantly, CFA are no longer viable for claimants not bringing a personal injury claim. While LASPO provides some level of costs protection for claimants bringing a personal injury claim (Qualified One Way Cost Shifting “QOCS”), there is no protection for those with other claims. This makes it imperative for claimants funded by a CFA to have After the Event (ATE) insurance if they are to pursue claims and do not want to be personally liable for costs in the event they lose their claim. However, as a result of the changes to recoverability of the ATE premiums (introduced by the Jackson reforms), as well as the fact that QOCS does not apply to cases where there is no personal injury element (such as false imprisonment or malicious prosecution), the ATE insurers have had to revise their own business model and now, understandably, have a much reduced appetite to insure these types of claims. In any event, because of the significant litigation risk involved, the ATE premium can even outweigh the potential sum in compensation. As a result, often very viable claims cannot be issued because it is too much of a risk for the individual should they become liable for the defendant’s legal fees in the event that they lose their case. This represents a substantial injustice for those individuals.
It is important to remember that the changes to the recoverability of ATE insurance premiums and success fees were brought about because of pressure from large corporate defendants and their own insurers; the removal of their recoverability were targeted at wealthy private-client and commercial law firms who represent clients in sizeable financial claims. This is not the kind of legal landscape that civil liberties claimants and law firms exist in; our clients are often the most vulnerable people in society, they do not have the power and control of corporate bodies and do not have the same influence over Government policy. It is exactly these people that need the protection of the law. At present, that protection is increasingly illusory because those individuals are prevented from accessing the justice system at all.
Changes to Judicial Review
In respect of judicial reviews, a new costs regime brought in by the Civil Legal Aid Regulations (Remuneration) (Amendment) 2015 negates the ability of many firms to even contemplate taking on a judicial review. These Regulations changed the costs regime to the effect that firms may not be paid for the work they have undertaken prior to the permission stage, if they are not given permission to proceed.
Exponential increase in court fees
The increase in court and tribunal fees has also dealt a further blow to the ability of individuals to gain legal redress. Forced to pay 5% of the value of a claim for all claims worth over £10,000, to a maximum fee of £10,000, this is a major financial barrier to bringing a case for any individual. This payment is due even in legal aid cases and can use up a large proportion of the funding for a case.
All of these issues work together to create an almost insurmountable barrier to justice for individuals. Through my work as a civil liberties lawyer, I often encounter individuals who have meritorious cases involving exceptionally important constitutional issues or flagrant abuses of power who have to run their cases without the assistance of a lawyer (because there is no funding regime available to them) or have to take the distressing decision not to challenge the serious wrong that they have faced.
What changes need to be made?
Urgent changes are needed and HJA has outlined a number of recommendations in the firm’s evidence to the Bach Commission.
First and foremost, legal aid must be made available for a wider range of legal issues, with reforms made to the incredibly narrow eligibility limits. In relation to the proportionality test, non-financial remedies should be given more weight so that claimants with otherwise strong but low value claims are not refused funding.
Court fees must be reduced to allow claimants to issue their cases and enable individuals to enforce their rights. In claims with short limitation periods where cases must be issued before a full investigation is undertaken, or in cases where the civil claim is delayed so as to allow an inquest to take place, court fees still have to be paid. We believe this should be changed to allow fees to be refunded entirely or in part if the case has to been discontinued or settled before it is able to go through the court system.
In addition, there should be a different court fee system for commercial claims than individual claims, particularly those with a wider public interest or involving a significant constitutional wrong.
For judicial reviews, the costs system for cases should revert to their pre-Regulation limits which were by no means over generous.
Finally, we would recommend that QOCS should be extended to cover all claims involving abuses of state power and claims under the Human Rights Act to ensure that those with meritorious claims (and who are not eligible for legal aid) are not prevented from gaining access to justice. As explained above, it is imperative that individuals who have had their civil liberties or human rights contravened, should benefit from the same justice system that the wealthy elite and corporate world enjoys. If this is not achievable, the whole premise of a fair and democratic society is undermined.
It is welcome that the Labour Party are taking so seriously the huge gap in access to justice we face today and are planning to take action to change a justice system that is becoming unaffordable to all but the wealthiest of our citizens. We need a strong, reliable system that is open to everyone and which engenders trust. A lack of access to justice has implications for society as a whole, not just those who are unable to seek legal redress.