Insight | March 2017
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 came about, and then 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 suffered by everyday people in the United Kingdom. Largely based upon the combined incentives of Alternative Dispute Resolution (ADR) and part36 (early offers strategies), it was suggested that by expediting claims, there would by default, become a lesser chance of spiralling legal costs, and reluctance of the poor seeking recovery for damages sustained in events beyond their control.
While from a superficial slant this ‘quickening’ of justice appears to embrace those without the means of representation and the legal acumen to work alone, it is now suggested that in fact the contrary has become true. With the collective impact of legal aid cuts, increased court fees and numerous court closures, the resulting options take on a less attractive sheen, in lieu of the growing hesitance to seek legal reparation. This gross misdirection translates as a more cloaked prevention, over the illusion of equitability, and to date there are now many activists campaigning for a dramatic change in policy.
As was discussed in my own academic paper, the dangers inherent to early offers far outweigh the genuine reward for pursuance of authentic remedy, but unless fiscally challenged claimants are determined enough to transcend the aggressive manoeuvres of defendant representatives, the odds will by majority, 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 and unable to fight back.
In a report published in October 2016, 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 quite simply 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.”
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 that in the first instance there is no legal counsel, and no validation of a right to claim without parallel concerns of costs, there remains only the stark realisation that the price of justice now relies upon the roll of a loaded dice.
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 to some extent, 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. This is 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.”
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, but that should never encourage the marginalisation of legal support in a world that is only becoming more crowded and prone to collisions of priority.
While there is understandable anger at the gradient closure of almost 90 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 an (albeit 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 recent divorce.
In closing, the point in greatest need of clarification, is that the true meaning of ‘access to justice’ is not one of quick fixes to complex problems. Rather it is about 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; and so 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.