Optional activity

Yesterday I was fortunate enough to breakfast with a couple of professional friends who, between them, must know just about as much as anybody could or hope to know about personal injury litigation in this country (and as far as Rome too!)

Inevitably, the main subject of conversation was the news from the Ministry of Injustice last week and the grotesque court fee hikes quickly implemented two days ago. We took the opportunity to develop a (darkly) humorous idea that had been floated briefly in the ether last week on the back of Lord Faulks’ noble proclamation that “litigation is very much an optional activity”.

We thought we might set up our own privately owned civil court.  Naturally, we would try to replicate all the good things about our court service - there are many - but do everything else (far) better. 

We would still charge fees to court users but they would not be anything like those so very recently imposed by our esteemed Lord Chancellor.  We think that at many levels they would probably be more in line with the radically different fee structure that we used to have…last week.

This funding scheme could not be relied upon to maintain the service partly because existing volumes probably would not generate sufficient value at that level and also because usage is always unpredictable. On the other hand, the service needs to be maintained so that it’s there when required, rather than turning into that rusty old machine in the derelict shed (see Road to ruin).

So the simple answer is that we would have a regular subscription paid by all potential users of the system.  We would make sure that everyone who might need to have recourse to our justice facility made a contribution proportionate to their income.

To reflect all these attributes we were trying to think of an appropriate name for it - maybe......er, a “tax”.

Come to think of it, we could use the same model for one or two other things that one might class as “optional activities”.

How about using that fund to support and maintain a bunch of security people that you could call upon when you need them to protect you, your loved ones and your property.

That way, you would not need to worry about whether you could find or afford the money to avoid, perhaps, being invaded by a foreign nation or getting beaten up in the street.  It would be these guys who turn up and defend you, or by their very existence discourage such events to a large degree.  We could call them....”the defence services” and “the police”.

Now, what about some medical facilities.  If we could use this fund to provide hospitals and ambulance services that would be quite useful.  Then, after you had had your head kicked in or been run over by a car you would not need to bleed to death whilst rummaging through your pockets or bag for cash or a credit card and trying to work out if you can afford to have your life saved.

We could call this – oh, I don’t know – a “health service”.

You get the idea. 

If you’re going to have any sort of facility providing benefits to all its members or potential members, then you need to commit to an investment and maintain it, irrespective of whether, in the short to medium term at least, you’re convinced of the need for it.

Whether it’s a friendship or a municipal building, you cannot expect it to be there just when you want it.  You have to accept that you will need to make an investment of time, money or whatever – often when it does not suit you – if you want it to be there when it does suit.

Some things are so important that they must not be left to chance, susceptible to the irresponsible or selfish view that “we’ll worry about that when it happens”.

When it comes to vitally important, and by no coincidence significantly expensive, facilities it is the undeniable duty of the state to take responsibility for the well-being of its citizens.

Defence, policing, healthcare.  None of these should be expected to be self-funding.

So what about justice?  Justice is a cornerstone of the democratic state.

It’s no more an optional activity than being invaded, murdered, raped or bleeding to death. For many people, legal services are a distress purchase and they need to be affordable one way or another.

Our democratically elected government has a duty to ensure this.  Aristotle, Dostoevsky and Ghandi are all credited with similar observations the essence of which is that as a society we are judged by the manner in which we treat our weakest members.

Time and again, you are failing, Mr Grayling.

Road to ruin

If I told you that the price of something – anything – next Monday will be 760% of what it costs you today, where might you think I am speaking from?

Venezuela?  Zimbabwe perhaps? Or some dark dystopia - a creation of Orwell or Kafka?

Well, if you pitched for the third option you were probably closest but for “Orwell” and “Kafka”, substitute Cameron and Grayling.  I’m talking about the UK – today – as we brace ourselves for a price rise that will be more than 2,500 times the current “record low” rate of inflation in this country.

So, what is it?  What is this precious commodity that deserves such a colossal mark-up?

Justice. 

Seriously. 

Our Ministry of Injustice is raising the level of fees that people will have to pay to The Court Service to begin a civil claim – and how. 

For claims worth under £10,000 there is no change to the current structure but above that figure and up to a value of £200,000 the court fee payable will be in all cases 5% of the value of the claim.  For example, a case I issued a few days ago that attracted a court fee of £610 would now cost just shy of £2,500 to get started. 

At the top of this horrifying ladder the difference is alarming.  A current fee of £1,315 rises by 660% (sic) to £10,000.

The new fee is 760% of the old one.  For brief analysis of the figures, see my blog through the link behind that grotesque statistic.

Yeah, so what’s the fuss about?  Everything (except oil) is getting more expensive and the current prices are probably nearly as old as Magna Carta.

Well, no – actually court fees have been rising steadily for many years and there were reviews of the fees order in April and August last year. Periodic (annual usually) increases have always been swallowed, with varying degrees of indigestion.  It’s always too much for one side and not enough for the other – but, hey, that’s life.  Nobody is being unrealistic.

This present move is horrifying.  Some readers may wonder why they have not heard much, or anything, about this coming and the answer there lies in the current Justice Secretary’s own personal brand of “consultation” which by now has passed into legend. 

Christopher Grayling’s track record of deceiving Parliament and the electorate or otherwise plain and simple getting things wrong is largely catalogued in my post about the Ministry of Injustice.  Even since then, he has travelled further down the same career path. 

Yet another judicial review earlier this week found that once again our Lord Chancellor had acted unlawfully.  What a fine example to our legal system, and of justice in the Western world.

But he doesn’t care.  Facing widespread and heavyweight opposition from within the legal industry, he has ploughed on and brought the implementation date of these proposals forward as quickly as possible one aim presumably being to get it done before the Law Society launches its promised judicial review of the increases.

Grayling’s sidekick, Shailesh Varma dismissed the objections last week proclaiming that these price rises would “have no impact on access to justice”. 

Those of us who have been around this industry for a while (and many who have not) said that the introduction for the first time of issue and hearing fees in the employment tribunals would create a barrier to justice for many.  We were talking there of fees to run a fairly typical unfair dismissal claim totalling £1,200.  To put that in context of your average wage earner in this country, suddenly and wrongly out on their ear with no other redress, see Fire at will. 

For those who haven’t twigged yet, in both of these contexts we are concerned here solely with the fees that a claimant has to pay to the government to use the court process.  They are nothing to do with the costs of a solicitor or barrister to help you with the process.  That is another story.

You don’t need a Masters in rocket science to appreciate the likely effect. Guess what?  Official statistics have proved that in the twelve months following the introduction employment tribunal fees, the number of claims brought has dropped by around 75% to 80%. Access denied.

It’s hard not to feel contempt for those at the MOJ who says this will have no impact.  It’s nonsense.  Of course it will.  It’s a no-brainer.

Commercial clients that I act for are up in arms over this.  Litigation is part of their daily business, factored into overheads and cash flow.  £610 may not raise an eyebrow but there will be at least a cough at £2,500 for the same value of claim.

Plenty of examples similar to this have already been cited but what of somebody like the unfortunate lady octogenarian thrown over the roof of a car from the apparent safety of a zebra crossing in the centre of Bridgwater at 9:30 one Tuesday morning?  A handful of other lawyers that I had the privilege to fight alongside in the Court of Appeal twelve years ago will recognise the event that spawned my contribution to what became the Conditional Fee Test Cases.

That innocent and badly-injured pensioner could not afford court fees.  I did what hundreds of other solicitors up and down the country have always done and would still do – funded the court fees and other disbursements, as well as taking the risk of not getting paid for the original claim, two appeals and goodness knows how many battles over the costs of the costs of the costs. 

Pay a court fee of £1,315 on a case with decent prospects worth £200,000?  Almost certainly, yes. Same case, same prospects, same value – but I need to put my hand in my pocket for £10,000.  Mmmm, not so sure.

That’s my outlook and I’m in a business an integral part of which is to take legitimate and measured risks.  There are plenty of other lawyers who recognize all of this. Present the same scenario to an innocent, injured and impecunious man or woman on the street and you know where it’s headed from that point.

 

Either it won’t happen, or it will be picked up by the monkeys who work for Peanuts who have no principles and will take the risk because they have an escape route - selling out the claimant.

It’s not just personal injury which, we know, leaves a nasty taste with many people who often don’t grasp the fact that there are deserving accident victims, by law, entitled to a remedy.

This administration just doesn’t get it. The State has a duty to provide an effective justice system.  That doesn’t just mean that it should exist – whether in the form of the badly mutilated remains of our national network of courts or the palatial Rolls Building in London.

It has to be accessible too.  That means above all else that you cannot move it behind a paywall that is impenetrable to all but large corporations and oligarchs.

Justice is an entitlement of society, not a privilege of the rich - unless we are going to wind the clock back eight hundred years. 

Some of my friends and colleagues, particularly those in what for me is the strange territory of family law, insist that “it will be alright” – even suggesting that this is “a good thing”, to use the parlance of 1066 and All That. 

Why?  Well, because we now have mediation in the sense that it has been around for a few years, everyone is familiar with it and there is in truth a well-organised industry.

Don’t get me wrong – I am a big fan of mediation.  I have trained as a mediator.  I have used those skills in professional and private life beyond the confines of helping parties to litigation to find better solutions than even our best judges could impose.

But it’s not a complete answer.  It’s a scenario where you can probably make the horse drink, but the big question is whether you can lead it to the water in the first place.  For more, see Mediation's Achilles heel.

It won’t work in all cases purely because it’s consensual.  Some parties to disputes, business or personal, are not interested in the ethics and beauty of a collaborative solution.  They just want to win.

Why then commit to a process within which you will inevitably be going to make some concessions when you are holding all the cards and the only way for your opponent to change that is by another process that he or she cannot afford.  It runs something like this (I’m the bad guy in the driving seat here)….

Decent person – “this court business is all too expensive for me but fortunately there is a practical alternative to help us reach an agreement that you should pay me at least some of the money I think I am entitled to.  Let’s go and mediate.

Me – Go boil your head.

Decent person – Oh please! I can’t afford to go to court.  Can’t we mediate?  Everybody says it’s such a good thing.

Me – “have a nice day – loser”.

(Sound of door slamming followed by tears)

Enough said.

These monstrous court fee increases are a death knell for justice.  We are not just taking about the immediate barriers to those with claims today or tomorrow but about the accelerated decline and decay of the civil justice system. 

The machine, through disuse, will fall into decline.  Maintenance engineers (yet more) will look for jobs elsewhere.  The machinery won’t be modernised. There will be nobody who remembers how to use it.

There will be just a mass of user manuals created within the course of a decade, though it will be unclear which one to consult. There might still be a crazy old boy at a desk in the corner of the shed who faintly recalls how to fire it up.  Come to think of it, that could be me or one of a handful of others I can immediately think of.

Joking aside, this is headed into the abyss.  A lot of people, lawyers and their clients, will turn their backs on the system.  The lawyers will go and do something else and those with a problem they cannot afford to ask the judges to resolve will look for other avenues to “justice”.

In some, perhaps many, situations, that highway may be called “mediation”.  In a growing number of cases it may be the Road to Ruin.

760%

The House of Lords is this evening debating the catastrophic rise in court fees proposed by our hapless Lord Chancellor.

I’ve been planning for a number of days to blog about the massive injustice of this proposal but only this evening have I examined the figures against the background of the justifiable outrage at what has been publicized as an increase of up to 622% at one level.

But it’s worse still – in case nobody else has noticed.

In December the Civil Justice Council published an analysis that included this table:

The highlight is at the £200,000 threshold and the calculation that an increase from £1515 to £10,000 amounts to £8,725. Plainly, £1,515 + £8,725 = £10,240.

So, the MOJ can’t add up – no surprise there.

But it’s worse than that because the court fee, currently, for a claim of £200,000 is only £1,315. 

Here’s an extract from the current list of fees published in August last:

Note that the top of the bracket for the £1,315 fee is £200,000 – dead.

Under the new scheme, the fee will be 5% i.e. £10,000.

So, in fact, the increase is 660% and the new fee an excruciating 760% of the current figure.