Justice in the Age of Austerity

Austerity has been elevated to the position of a deity. Cuts for cuts’ sake and cheapness as an end in itself have become the order of the day. However, as with the wider doctrine of austerity, so the reforms in the arena of legal services seem to be driven, at least in part, by dogma without any sense of what the actual objective is or whether there is a coherent thought process behind them.

We might want Ferraris to be cheaper so that we all may have one. But if the Italian government were to legislate a reduced price for Ferraris, how low would that price need to be before what you received was not what you thought you were buying?

Ostensibly, the goals of the RTA reforms were to weed out fraudulent claims and to reduce drivers’ insurance premiums. The reforms were piloted through by a former Justice Minister whose family fortune was derived from the insurance industry and whose “feeling” was that the number of fraudulent claims was higher than even the insurance lobby claimed. There are and always have been severe penalties for dishonest claims and nobody could suggest that there is any injustice in such penalties. Furthermore, only the most naïve observer could possibly believe that insurers would pass on any savings to their customers rather than simply reporting higher profits and declaring higher dividends for shareholders.

The latest proposals to fix costs in all actions up to £250,000 appear to be a continuation of this blinkered process. The Department of Health has been vociferous in pointing out the high level of costs claimed in clinical negligence cases. However, their propaganda is often devoid of context and disingenuous. Anyone familiar with the conduct of clinical negligence cases by the NHSLA will be aware that they are frequently their own worst enemy in terms of generating costs – dragging out matters and causing them to progress further than necessary down the road towards trial. Furthermore, no analysis has been done of the level of costs claimed following the abolition of recoverable success fees which, in clinical negligence cases, were set at 100% as often as not.
Successive governments have bought into the narrative peddled by the insurance industry – fat cat lawyers growing rich at the expense of beleaguered premiums and tax payers. This narrative has been spun by the national press with multiple stories appearing, most recently the government’s pledge to crack down on lawyers who bring claims against “heroic” soldiers serving in theatre, following revelations of the destruction of exculpatory evidence in cases brought by clients of Leigh Day.

Again, there are, quite rightly, severe penalties for both claimants and lawyers who attempt to mislead the Court; but what of the genuine claims? Should servicemen be permitted to carry out atrocities whilst their victims have no recourse? If it is the intent of government to make serving soldiers immune from suit then why not do that? Why choose to do it by bashing the legal profession for the inexcusable actions of the few?

If the aim of the reforms were simply to make justice cheaper and more accessible there would be some sense. However, the fixed costs implemented so far have been set at such low levels that the “Ferrari” is no longer a “Ferrari” or rather cheaper does translate into access to justice but access to something rather less as long as your claim is in no way difficult.

Added to the growth in parsimonious fixed fees and anti-Claimant, anti-lawyer rhetoric, the proposed increase in the small claims threshold, would seem to indicate that the true objective is not access to justice but simply the deterrence of claims and the disenfranchisement of ordinary injured claimants as against Defendants who are usually corporate insurers or government departments and who will always be able to afford lawyers.

This article was written by Robert Parness who is a Costs Lawyer at the Carlisle Office of Burcher Jennings. He also presents his own CPD accredited training to solicitors throughout the jurisdiction. For a number of years Robert was in charge of Burcher Jennings’ litigation team, heading a group of advocates attending assessment hearings up and down the country.