It is great to see that the Robert Bourns President of The Law society has said in The Law Gazettte what we have all been feeling for the past few years. It’s time we fought for our profession and the rights of the people we represent. We all need to act NOW.
Robert Bourns is president of the Law Society
Our justice system is verging on crisis. Solicitors must unite.
It began with legal aid changes. Then court closures and increased court fees. Now we’re faced with severe limits on how much you can claim for crucial legal advice when injured through no fault of your own. Persistent attacks have left access to justice in England and Wales on the verge of a crisis.
In a whole range of situations you now have to be very comfortably off to seek legal redress. You either represent yourself or give up.
Physical access to courts is one problem. An extensive closure programme – illustrated by the Law Society’s interactive map – has targeted one fifth of courts and tribunals, deepening inequalities. The most recent consultation proposes closure of courts that had taken work from courts closed in the earlier round. This has been coupled with a reduction in the number of court staff. The stories of those awaiting court orders, including in cases of divorce, are legion.
Part of the rationale for closures was that better use of technology could improve the service and reduce the need for in-person hearings. A modernised court service could benefit users. But the MoJ and HMCTS chose to press ahead with closures before the online courts had been commissioned and tested.
In July we exposed the problems faced by people in desperate need of housing advice. The shortage of specialists has created legal aid deserts for some of the most vulnerable.
Meanwhile, proposals to up the small claims limit from £1,000 to £5,000 for personal injury would be a further devastating blow to justice.
Imagine being hurt through no fault of your own and then denied specialist legal advice. That won’t be the case for the insurer of the driver who ran into you. Truly a ‘David and Goliath’ situation that runs against any notion of fair play.
The proposal of the five-fold increase to the claims limit for minor injuries is being spun as an attack on a dubious ‘compensation culture’ which would benefit consumers who would see a cut in their insurance premiums.
There is no certainty that ‘savings’ would be passed on by insurers. Indeed there is evidence to suggest that savings attributed to earlier reforms have not been passed on.
An increase in the limit would undermine the ability of ordinary people to receive the full and proper compensation they are entitled to in law for the actual losses they have suffered, from those that have injured them – often seriously – through negligence. It is a long-established principle of common law that you should be able to recover losses you suffer through someone else’s fault. The majority of damages in these cases are relatively modest, reflecting losses of income at levels that the prime minister would refer to as ‘Just About Managing’. Why should these people be so disadvantaged?
Just think of the number of people who will be tempted to try to bring claims themselves without expert advice. Put together with restrictions on eligibility for legal aid which denied thousands access to advice and representation, any savings from these proposals are likely to evaporate in the clogged-up court system.
Meanwhile, waiting in the wings, Lord Justice Jackson is to undertake a review of fixed recoverable costs. We do not oppose the principle for straightforward, low-value claims as they can provide some certainty for both sides in litigation and avoid disputes about costs.
But we are concerned at suggestions that costs should be fixed for all claims up to £250,000 – a 10-fold increase on the current limit for many claims subject to a fixed cost regime which would discriminate against those on lower incomes.
Cases at this level of compensation include situations where people have been very seriously harmed and where the application of fixed costs would be totally inappropriate because of the complexities involved in bringing higher value claims.
This one-size-fits-all approach will simply make many cases economically unviable to pursue.
We had a justice system which was the envy of the world. It is now out of the reach of most. As a profession we must stand united to protect and promote a justice system available to all members of our diverse society.
Robert Bourns is president of the Law Society