A crisis in the civil justice system which could be of the Coalition's making

Are we creating a legal system that serves the interests of the rich?

Share

One has to feel a little sorry for the civil justice system – ignored in the media in favour of its criminal counterpart and traduced by the public for pushing up their car insurance premiums.

Ignored and traduced, that is, until someone needs it. When the negligent behaviour of their employer leads to a life-changing injury, or the surgeon who was supposed to make them better leaves them disabled for life, or the substandard plumber leaves them with leaking pipes and a home in ruins.

Nobody expects to be put in any of these situations, but when they are they are generally thankful for the independence of our judiciary and the quality of our lawyers and proud to live in a country with one of the finest legal systems in the world.

One rule for the rich

Yet government reforms risk creating a system in which civil justice is open only to the wealthiest, while also seeking to implement changes which undermine fundamental and longstanding principles of our justice system.

Shortly after the coalition came into power, the Ministry of Justice made clear its intention to implement reforms proposed to the funding of civil claims by Lord Justice Jackson, a senior judge in the Court of Appeal. The reforms were intended to counter the perceived problem of high legal costs in civil cases, and in particular personal injury claims, which were (according to insurance companies) driving up insurance premiums.

At this stage it’s necessary, I’m afraid, to get a little technical. Most accident claims are funded under a conditional fee (commonly referred to as a no-win, no-fee) agreement, a system introduced to replace legal aid for such cases in the late 1990s. Under such agreements the claimant’s lawyers do not get paid if the claimant is unsuccessful. But if the claimant is successful the claimant’s lawyers can recover a “success fee” in addition to their costs, payable by the other side (usually an insurance firm), as a “reward” for the risks of taking the case under such a funding arrangement.

The system has the effect of making it relatively risk-free for an injured person to bring a claim, but also of pushing up costs in successful cases, often so that they are significantly higher than any compensation awarded.

The government’s reforms– implemented in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 – make two key changes. First, successful claimants will no longer be able to recover success fees from the losing defendant. And secondly, the claimant’s costs which are payable by the defendant will have to be “proportionate” to the compensation paid.

On top of these reforms, the government also plans to extend a system of fixed costs which will apply to the vast majority of personal injury cases. Yet the level of those costs, just announced for consultation, are so low as to make all but the simplest cases almost completely unprofitable.

And therein lies the point that the government simply do not seem to have been able to grasp. Costs in most cases are high not because lawyers invent work for themselves to do, but because they are genuinely complex. Cases often take years to come to court, particularly where the injuries suffered are severe, and a large volume of necessary work is undertaken.

The reason costs often exceed compensation payouts is not primarily because costs are too high but because compensation rates in England and Wales are woefully too low, particularly for more serious injuries.

Crisis

If implemented in full, the government’s proposed changes will lead to an access to justice crisis. Solicitors firms will go out of business, and those that remain will take on only the simplest cases that they know will succeed. Those with more complex cases, often with very serious and debilitating injuries, and without the resources to privately fund their claim will be left without recourse to the civil justice system.

And if one bad bill wasn’t enough, the government is currently in the process of shepherding through Parliament a bill that will strike at the heart of some of the most fundamental principles of civil justice.

The Justice and Security Bill introduces the concept of closed material procedures into civil trials: hearings which are not only closed to the public but also to the claimant, with the judge hearing the defendant’s evidence in private. The claimant and her lawyers can’t challenge the evidence, and if the judge finds in the defendant’s favour based on the secret evidence, the claimant will never know why their claim was unsuccessful.

The Bill is intended to allow evidence to be put before the courts that has the potential, if made public, to threaten national security. But it does so in a way that threatens concepts that are as old as the justice system itself: open, public justice and the right of parties to challenge the other side’s evidence in open court.

Civil justice might not grab the media spotlights like other parts of the system, but it is there to right wrongs for people who have been placed in desperate situations through no fault of there own. The government risks undermining two of the most important principles – open and accessible justice –on which that system is built. That would weaken us as a society and it would be a terrible legacy for a government that came to power promising to strengthen the rights and liberties of the people of this country.

React Now

  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
iJobs Job Widget
iJobs General

Ashdown Group: Front-End UI Application Developer

£30000 - £40000 per annum + Benefits: Ashdown Group: Front-End UI Application ...

Recruitment Genius: Digital Account Executive

£18000 - £26000 per annum: Recruitment Genius: They work with major vehicle ma...

Recruitment Genius: Service Engineers - Doncaster / Hull

£27000 per annum: Recruitment Genius: Domestic Service Only Engineers are requ...

Recruitment Genius: Employability / Recruitment Adviser

£23600 - £27500 per annum: Recruitment Genius: The Employability Service withi...

Day In a Page

Read Next
 

South Africa's race problem is less between black and white than between poor blacks and immigrants from sub-Saharan Africa

John Carlin
Queen Elizabeth II with members of the Order of Merit  

Either the Queen thinks that only one in 24 Britons are women, or her Order of Merit is appallingly backward

Janet Street-Porter
Where the spooks get their coffee fix: The busiest Starbucks in the US is also the most secretive

The secret CIA Starbucks

The coffee shop is deep inside the agency's forested Virginia compound
Revealed: How the Establishment closed ranks over fallout from Loch Ness Monster 'sighting'

How the Establishment closed ranks over fallout from Nessie 'sighting'

The Natural History Museum's chief scientist was dismissed for declaring he had found the monster
One million Britons using food banks, according to Trussell Trust

One million Britons using food banks

Huge surge in number of families dependent on emergency food aid
Excavation at Italian cafe to fix rising damp unearths 2,500 years of history in 3,000 amazing objects

2,500 years of history in 3,000 amazing objects

Excavation at Italian cafe to fix rising damp unearths trove
The Hubble Space Telescope's amazing journey, 25 years on

The Hubble Space Telescope's amazing journey 25 years on

The space telescope was seen as a costly flop on its first release
Did Conservative peer Lord Ashcroft quit the House of Lords to become a non-dom?

Did Lord Ashcroft quit the House of Lords to become a non-dom?

A document seen by The Independent shows that a week after he resigned from the Lords he sold 350,000 shares in an American company - netting him $11.2m
Apple's ethnic emojis are being used to make racist comments on social media

Ethnic emojis used in racist comments

They were intended to promote harmony, but have achieved the opposite
Sir Kenneth Branagh interview: 'My bones are in the theatre'

Sir Kenneth Branagh: 'My bones are in the theatre'

The actor-turned-director’s new company will stage five plays from October – including works by Shakespeare and John Osborne
The sloth is now the face (and furry body) of three big advertising campaigns

The sloth is the face of three ad campaigns

Priya Elan discovers why slow and sleepy wins the race for brands in need of a new image
How to run a restaurant: As two newbies discovered, there's more to it than good food

How to run a restaurant

As two newbies discovered, there's more to it than good food
Record Store Day: Remembering an era when buying and selling discs were labours of love

Record Store Day: The vinyl countdown

For Lois Pryce, working in a record shop was a dream job - until the bean counters ruined it
Usher, Mary J Blige and Will.i.am to give free concert as part of the Global Poverty Project

Mary J Blige and Will.i.am to give free concert

The concert in Washington is part of the Global Citizen project, which aims to encourage young people to donate to charity
10 best tote bags

Accessorise with a stylish shopper this spring: 10 best tote bags

We find carriers with room for all your essentials (and a bit more)
Paul Scholes column: I hear Manchester City are closing on Pep Guardiola for next summer – but I'd also love to see Jürgen Klopp managing in England

Paul Scholes column

I hear Manchester City are closing on Pep Guardiola for next summer – but I'd also love to see Jürgen Klopp managing in England
Jessica Ennis-Hill: 'I just want to give it my best shot'

Jessica Ennis-Hill: 'I just want to give it my best shot'

The heptathlete has gone from the toast of the nation to being a sleep-deprived mum - but she’s ready to compete again. She just doesn't know how well she'll do...