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A look at 2017: Access to justice

05 January 2017

In the first in a series on the key issues concerning solicitors in 2017, Robert Bourns looks at threats to access to justice.

The New Year falls a little less than half way through the presidential year and therefore provides an opportunity to take stock and look ahead to 2017. This month I will write a series of blog posts offering some thoughts on the most pressing issues for the solicitors’ profession this year.

This blog will focus on access to justice. Having a justice system that works for everyone and delivers justice for all is an ambition of the lord chancellor. However, proposals to reform the civil justice system threaten to undermine this aim. Our three main areas of concern are personal injury, fixed recoverable costs and criminal legal aid. I will tackle each of these issues in turn.

1. Personal injury/small claims limit reform

The government is currently proposing to raise the small claims limit for personal injury claims from £1,000 to £5,000 to stop or radically reduce compensation payments for minor soft tissue injuries, including whiplash, arising from road traffic accidents.

We are deeply concerned about the effects of these proposals if they materialise. All personal injury claims worth £5,000 and under will be processed under the small claims track which was designed to handle low-value and simple disputes. In most cases the court will not order solicitors' costs to be paid by the losing party.

The impact on individuals and small and medium sized enterprises (SMEs) with legitimate claims will be dramatic, adding to the adverse impact of increases to issue fees. Research from Association of Personal Injury Lawyers (APIL) suggests that 70 per cent of claimants said they would not pursue their claim if they could not access advice. The advice comes at modest cost.

Without advice and a credible ability to issue proceedings, many ordinary people will be shut out from recovering the losses they suffer through no fault of their own. In addition, the public purse will suffer. The police will no longer receive fees for accident reports that contribute to their costs of dealing with accidents. If accident victims do not recover the costs of addressing ongoing medical needs, the NHS will pick up the tab instead of insurance companies. The Department of Work and Pensions will not recover the benefit payments made to the injured person. In short, the proposals will make the taxpayer cover financial losses, for the benefit of the insurance industry's profits.

Moreover, if defendants (or their insurers) do not believe that there is a realistic prospect of an accident victim pursuing their claim, they will be less likely to offer a settlement, even in very strong cases. So these proposals will alter behaviours in those who should be making good the losses they have caused, to the detriment of accident victims and the public purse.

There will be many more litigants in person, and more of the disenfranchised beating a path to the voluntary agencies, their MPs' surgeries and others, who will struggle to find suitably qualified advisers to refer them to.

The suggestion that this is necessary to avoid fraudulent claims doesn't stack up. It is implausible - solicitors are in fact gate keepers, keeping many claims without merit out of the system. The insurers have sophisticated management information that will enable them to profile claims, judging those without apparent merit. Those claims should not be paid and the government should not and need not be disenfranchising those of modest means, who suffer losses as a result of the fault of others.

By stealth these proposals substantially undermine the common law principles that flow from recognising that we all owe a duty of care. We must continue to press the government not to increase the personal injury small claims limit. We urgently need your help, please respond to the consultation by Friday (6 January) and contact your MP to make parliamentarians aware of the risks of these proposals.

2. Fixed recoverable costs

Lord Justice Jackson is undertaking a review to extend the fixed costs regime. The terms of reference for the review include developing proposals for extending the civil fixed recoverable costs regime. It will also consider the types and areas of litigation in which such costs should be extended and the value of claims to which such a regime should apply. LJ Jackson has previously called for the extension of the fixed recoverable costs regime for claims up to the value of £250,000.

We have serious concerns on these proposals - while we support the principle of fixed costs in limited circumstances, their application for highly complex cases would be inappropriate and undermine access to justice.

The deadline for written comments is 23 January and we urge you to help us by providing case studies for claims up to £250,000 where a fixed cost regime would not have been appropriate or anonymised approved cost budgets for claims up to £250,000 across civil litigation. Find out how to submit on our fixed recoverable costs page.

3. Criminal legal aid

The potential 'reinstatement' of the cut to criminal legal aid rates from April continues to be concerning. If this were to happen, it is likely that many criminal legal aid firms would not survive, and for the first time since the legal aid system was set up there would be a significant risk of advice deserts for criminal defence services.

The Ministry of Justice (MoJ) committed to review the position before making a decision whether to reinstate the cut. In doing so it will need to consider what has happened to the number and the nature of cases coming to trial over the last few years.

The volume of cases coming to the criminal courts is reducing and in the Magistrates Court the Transforming Summary Justice programme already appears to be reducing the average cost per case. In the Crown Court, while the number of cases is reducing, the seriousness, complexity and weight of evidence in those that are coming to trial, particularly the current temporary increase in the number of historic sex abuse cases, means that the cost per case may well have increased slightly in the short term, properly reflecting the work involved. However, the Better Case Management programme is offsetting the increase and will ensure that when the current distortion in the case profile passes costs will be lower.

We will lobby hard to try to ensure that the government understands how fragile the market is, and the serious risks of market collapse if it were to reinstate the cut – we will need your help to make the case.

In addition to these points I remain concerned about how our advocacy rights may be affected. Whether it be higher court advocacy, advocacy in the Youth Court or the Advocates Graduated Fee Scheme, solicitor advocates have an established record for high-quality advocacy born out of useful and relevant experience in police stations, magistrates and other courts over a period of years. Our advocacy is often different, effective and to a high standard. The former lord chancellor, the Rt Hon Michael Gove MP, has made disparaging comments about the quality of solicitor advocates. He is just plain wrong.

We offer training to ensure practitioners keep pace with changes to jurisdiction and social mores - leading the training for those dealing with vulnerable people in all sorts of litigation. We have developed specialist advocacy and the vulnerable training, in conjunction with the Bar. We anticipate that the Ministry of Justice will make this training compulsory for all publicly-funded advocates before they can act in serious sexual offences cases. See the list of advocacy and the vulnerable training courses available in 2017.

On civil legal aid, we campaigned last year to try to persuade the government to tackle civil legal aid advice deserts, particularly in housing. The Legal Aid Agency is expected to hold a tender round for new civil legal aid contracts this year. We will continue to seek to persuade them to ensure there is adequate supply across the country, and to persuade the MoJ to undertake a proper review into the economic viability of the civil legal aid system.

We are live to these and other important issues on access to justice and will continue to actively campaign in 2017 to ensure that our justice system is accessible. I thank you for your help and wish you a very successful year.

Tags: legal aid | access to justice | court fees | courts | criminal legal aid

About the author

Robert Bourns was the 172nd president of the Law Society. He is a senior partner at TLT Solicitors, where he specialises in employment law. Robert is one of five representatives for the City of London constituency, a member of the Law Society's Equality and Diversity Committee, and a member of the Regulatory Affairs Board Regulatory Processes Committee.
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