ACCESS TO JUSTICE

What exactly is ‘access to justice’, and why do we need to preserve it?

To answer that we need to first understand how the phrase emerged and why it may be in danger of becoming a legal bygone.

‘Access to Justice’ was a phrase used by Lord Woolf in 1996, when attempting to streamline the litigation processes attached to personal injury claims in the United Kingdom. 

Based primarily upon the combined incentives of Alternative Dispute Resolution (ADR) and part 36 early offers strategies (see my paper at the foot of this article), it was suggested that by expediting claims there would by default, become a lesser chance of spiralling legal costs and reluctance by the poor seeking damages sustained in events beyond their control.

At first blush, this ‘quickening’ of justice appears to embrace those without the means of representation; however, it is now suggested that in fact the contrary has become true, in large part due to the collective impact of legal aid cuts, increased court fees and numerous court closures.

This gross misdirection translates more as a cloaked prevention than equitability, while there are now many activists campaigning for a dramatic change in policy.

The dangers inherent to early litigation offers far outweigh the genuine reward for pursuance of authentic remedy, yet unless fiscally challenged claimants are determined enough to transcend the aggressive manoeuvres of defendant representatives, the odds will always remain stacked against them.

This in effect, strangulates the innate purpose of accessible justice and places far greater value upon the currency of industry; therefore, while far from helping the weak, it runs a calculable risk of leaving them powerless to fight back.

Legal Aid

In their 2016 report, Amnesty International summarised that three key groups were directly affected by arbitrary cuts to legal aid support; namely (i) the vulnerable, (ii) the transitory and (iii) the disabled; and while taking great strides to illustrate the far-reaching consequences of such inconsiderate narrowness, the message was that:

“Amnesty International is therefore calling on the UK government to urgently fulfil its promise to review the impact of the cuts and take steps to ensure the right of the most disadvantaged sectors of society to access justice is adequately protected.”

AMNESTY INTERNATIONAL

Writing as a father of a special needs child, the first and third groups possess immediate implications for families similar to my own, who for one reason or another, might find themselves facing legal action, whether through public body frustrations, or simple damages-based incidents.

Yet, knowing there is no legal counsel and no validation of a right to claim without parallel costs concerns, there remains only the stark realisation that the price of justice now relies upon the roll of a loaded dice.

Legal Costs

Interestingly, while this area of discussion might prove hard to quantify with any degree of exactness, the Legal Ombudsmen publication ‘Ten Questions to ask your Lawyer about Costs‘, proves instantly invaluable when evaluating the merits of private law claims.  

More notably, recent changes to the fixed fees threshold within litigation, has appeased the fears of those predominantly affected by previous reforms; yet the issue remains that claimants subject to a deprivation of counsel (pro-bono or otherwise) might still think twice before filling out their CNF forms, a frank but cautious sentiment echoed by Jonathan Smithers of The Law Society, who remarked:

“A single approach for all cases, regardless of complexity, will lead to many cases being economically unviable to pursue which undermines the principle of justice delivering fairness for all.”

THE LAW SOCIETY

However, when all is said and done it is unlikely that both the practice industry and public interest will ever read from the same page, yet that should never encourage the marginalisation of legal support in a world that is only becoming more crowded and prone to collisions of priority.

The Courts

While there is understandable anger at the gradient closure of almost ninety courts across the country, the promise of a heavily invested tech and user-friendly system could prove the one positive in this tempering of justice; and so it would be remiss to level accusations of deliberate prevention, when the suggestion of ‘pop-up’ courts is peddled through various forms of digital media.

There is however, cause for concern when terms such as ‘makeshift’ and ‘public houses’ are used in the same context as the ‘fair’ and ‘reasoned’ dispensation of justice within a shrinking framework of purpose built environments, before calm and attentive audiences.

In fact, one might go so far as suggest that legal discourse is becoming diluted by virtue of the fact that ‘quickie’ courts will themselves, overlook the precision of judicial application in favour of higher case turnover. 

Contrastingly, the option to pursue legal ends through online portals would seem to proffer greater structure, less chance for media intrusion and a significant cost saving, as was shown during Gary Linker’s divorce.

In closing, the true meaning of ‘access to justice’ is ultimately not one of quick fixes to complex problems but an equal right to a domestic jurisprudence generations in the making.

By weakening the fabric of reparation in favour of mass appeasement, the English judicial system will only prove itself counter-productive and rushed.

Hence, it is crucial that any consideration for public interest and those employed to serve them must be delicately balanced, rather than a mere continuance of treating every legal problem like a nail.

Addendum

Download and read my paper on early litigation settlements for further reading around the subject.

AI v MT (ALTERNATIVE DISPUTE RESOLUTION)

With the introduction of Alternative Dispute Resolution (ADR) in 2010, the essence of divorce and family proceedings became less governed by litigation and more attuned to considered discourse between parties on terms embracing the welfare of children and respect for individual rights.

After marrying relatively young, and moving quickly into starting a family, two devout members of the Jewish faith found themselves in stark opposition to how best they could live their lives and in turn, seek to end the marriage before occupying different countries.

When the matter of how contact could be set between the father and the two small children, it soon became a matter of contention that ultimately drew guidance from the Jewish community, but overall authority from the English courts.

When adopting ADR strategies, the emphasis is typically placed upon expedience and reduced costs; however, due to such vast geographical differences, and intrinsic religious constraints, the process of divorce ran over a period of years versus months, and was certainly not without its frustrations.

What eventually emerged however, was that through a combination of delicate communication, respect for doctrinal traditions, cohesive written agreements and the balancing of the needs of the children, it was possible to overcome the potential pitfalls of cross-jurisdictional conflict, and move matters to a much more mature and objective conclusion.

This became an outcome that at times, seemed unlikely given the inclination by the parties involved to build walls between them, that in turn, served to harm the children and drain financial resources further.

Thankfully, it all came down to a successful collaboration of the Jewish authorities, domestic courts and continued willingness of the parents to collectively work toward a resolution beyond the lifetime of marriage, while in its conclusion, the court reminded the parties that:

“[S]ave where statute provides otherwise, when considering issues concerning the upbringing of children, it is the child’s welfare that is the paramount consideration.”