Impeding Access To The Civil Justice System

In 2008, the Master of the Rolls commissioned Lord Jackson to undertake a review of the costs of civil litigation. A stated objective of the review was to make recommendations in order to promote access to justice at proportionate cost. The final report was published in January 2010

What main factors did Lord Jackson identify as impeding access to the civil justice system? Assess the extent to which his recommendations, if implemented, would achieve his objective.

“A survey by the National Consumer Council in 1995 found that three out of four people in serious legal disputes were dissatisfied with the civil justice system" [1] A disproportionate number of people entering the civil justice system were not experiencing fairness or consistency of costs. Lord Clarke commissioned Lord Jackson to discover what factors were contributing to the escalating costs of civil justice. Jackson set out a “coherent package of interlocking reforms" [2] in his 2010 report making recommendations aimed at reducing litigation costs and to promote justice for the general public. Arguably this report is the most significant set of reforms to civil justice since those of Lord Woolf.

This essay will outline the factors that are impeding access to the civil justice system as outlined in Jackson’s report. It will then discuss how, if at all, his recommendations will be implemented and whether they achieve his set objective. Finally, it will conclude that the civil justice system as it stands is too costly and is disproportionate in its aim of promoting justice.

The judiciary understood in recent years that the civil justice system needs further amendments. “Even if the Woolf reforms and decreases in legal aid spending saved the Government money, it does not appear to have decreased the costs paid by litigants." [3] Arguably area in most dire need of reform is, Conditional Fee Arrangements (CFAs) and Success fees. Most commonly referred as ‘No win, No fee’ arrangements and are used in many types of civil action. The 1988 Civil Justice Review recommended litigation be funded on a CFA basis, meaning the claimant only funds litigation if he wins, therefore the lawyer claims fees from the portion of damages awarded to his client. There was a hostile response to the proposal. Opponents felt it was in conflict with the Indemnity principle, meaning the party is put into the position he would have been had no wrong be done to him. However by following the CFA proposal, the successful party would have his costs covered by the other side, but would still be required to pay his lawyer from his damages. Therefore not being “made whole by his award." [4] In 1990 although opposition was clear surrounding CFAs, they were made enforceable under s58 of the Courts and Legal Services Act 1990. [5] The introduction of CFAs was to fill the gap between those who were too poor to qualify for legal aid, but too wealthy to be able to fund their own legal advice. The system later adopted was where CFAs are “based on an uplift from the level of fee that lawyer would normally charge…" [6] The original uplift fee was 20%, however in 1993 this changed to 100% uplift. The reason being due to the risk taken by a solicitor when contracting CFAs, and without a higher uplift it would not be worth their time. However, it doesn’t seem to have deterred people, as CFAs are the way thousands of civil cases have been brought. 2000 saw greater use of CFAs due to changes to the Access to Justice Act 1999, allowing for recoverability of success fees and After The Event (ATE) insurance premiums. [7] Nevertheless, Jackson found that within CFA agreements there are two factors aggravating the cost increase; “(i) the lawyer’s success fee; and (ii) the after-the-event (“ATE") insurance premium" [8] ATEs are to cover the claimant from risk of having to cover the defendants costs. In the Final report, Jackson recommended these premiums and success fees “should cease to be recoverable" [9] from unsuccessful opponents. This recommendation allows for greater justice and significant cost reductions, and it’ll remain open for clients to enter into CFAs. However the client, not the opponent will pay any success fee from such agreements. A further recommendation by Jackson was Before The Event insurance. (BTE) He suggested this be attached to house or contents insurance, and would be something that would not cost individuals too much extra, but an added measure in protecting themselves in future litigation. However, looking at the Consultation paper [10] BTE premiums are not proposed following the recommendations made. Nevertheless, the paper that was drawn up from the reports recommendations, states the “primary recommendations on the reform of CFAs are that the recoverability of success fees and ATE insurance premiums from the losing party should be abolished." [11] These proposals taken from Jackson’s recommendations are open to discussion and these reforms along with feedback will be presented in a response paper in spring 2011. Jackson achieves his set objective well by helping to promote civil justice but at a more proportionate cost.

Continuing from the previous recommendation, if recoverability of ATE premiums and success fees were abolished, there would be a need to assist claimants in meeting their success fee. Jackson recommended the “level of general damages for personal injuries should be increased by 10% [12] (These damages would be to compensate for pain, suffering and loss of amenity.)" Jackson understands that by increasing the level of general damages by 10% it could lead to some people who are not on CFAs receiving a windfall, but strongly believes currently the level of damages is not high enough, and the opportunity to abolish recoverability would allow for significant reform. Although this recommendation could be seen as increasing the cost of civil litigation, it can be seen as positive. It may encourage more people to use the system if the damages were increased and could also make the civil justice system for litigants more proportional.

Due to the 10% rise in general damages to help meet success fees, naturally there is significant opposition. There would also be an increased cost for the defendant if they were in a losing case, as he would have to pay increased damages to the claimant. Moreover, as Thornberg suggests the Government is increasingly becoming the defendant, with many claims being brought against them. This 10% increase would actually mean further use of departmental money if claimants were successful, and not a cost saving recommendation. “Government is not just the funder of the court system; it is also one of the most frequent defendants. Many of the most controversial law suits are brought against public entities like the NHS, schools, military and the police..." [13] Thornberg also argues that the Government underwrites the cost of everything; including government lawyers, the court system itself, and compensation. Therefore with a 10% increase, there is a possibility that the departmental body could be in a budget deficit, encouraged by looking at the view of the Government in the Consultation Paper [14] . They state it is a judicial issue for the courts, and not a matter for the Government. This could be seen as the Government trying to avoid the issue, in the hope the judiciary will not review the recommendation.

Within the Preliminary report [15] Jackson identified other ways in which other jurisdictions awarded damages. The consensus was that most frequently, Spain, Italy and France all used a points based system. Jackson identified this as a far more predictable and easier way to assess damages. He also suggests the idea of a “working group" [16] to measure the damages for pain, suffering and loss of amenity. By identifying that there needs to be a uniform system for calculating damages, this does help meet one of Jackson’s aims - to develop a more proportionate civil justice system based on cost.

Part 36 is a form of Alternative Dispute Resolution (ADR), which the Civil Procedure Rules [17] positively encourages the use of. Part 36 encourages early settlement between the parties and the outcome can affect the decision of the court when they come to decide who should pay costs. Part 36 makes clear what will happen if the offer is made, and then accepted or rejected by the other party. [18] Part 36 offers can be tactical, and influence the outcome of the case, often who initiated the offer, can possibly receive a higher settlement.

Although the current system appears to work well, Jackson found there are not enough incentives for defendants to make or accept Part 36 offers. Therefore he proposed the rewards to claimants for making a reasonable Part 36 offer to settle should be increased by 10%, only enforceable if defendants fail to beat claimant’s offers. In addition to enhanced damages and incentives for Part 36 offers, the system also requires more certainty for parties involved in disputes. Jackson suggests a main areas for reform, is the principle of claims being “more advantageous" [19] This principle was defined in Carver v BAA plc, [20] as although the final result made Carver £51 ‘better off’, the consequences of going to court was not advantageous and she would have been in a better position had she settled earlier. However, this rule brings with it an “unwelcome degree of uncertainty into Part 36 regime." [21] Jackson suggests either a rule change, or if the opportunity were to arise, for the decision to be reversed.

A further recommendation was to introduce Qualified One Way Cost Shifting (QOWC) in certain cases. “A defendant will always pay the costs of a successful claimant but a losing claimant will pay only such of the defendant's costs as is reasonable for him to pay in the circumstances." [22] This idea proposed in Jackson’s Final report is most likely to be introduced for personal injury. This new principle aims to tackle the problems with the old ‘loser pays’ policy. Although there will be an increased cost for the defendant if the new system of QOWC were to be introduced, arguably it is the price that defendants should swallow in exchange for the benefit from another of Jackson’s recommendations [23] – recoverability of CFA success fees and ATE premiums. In the old system defendants would have been covered by the unsuccessful claimant, whereas now the defendant has to cover their own fees and expenses. One benefit of QOWC is the amount of costs to be paid to the successful party can be measured on a basis of reasonableness. If the courts do not think it reasonable that a party receive such a large amount, the quantity can be adjusted accordingly.

As a result of this proposal, there would be a reduced cost to claimant’s when using the system; this does achieve one of the objectives set to Jackson. As a knock on effect of preserving the party’s damages, there is subsequently less need for AEI premiums and insurers. However, when looking at as to whether the proposal would be effective if implemented, the Consultation Paper [24] , identifies that the system does not provide sufficient certainty as to whether the party would be liable to pay costs. This would not help to reduce the cost of civil justice, as many litigants would still be taking out hefty ATE premiums they may not need. It is clear the Government agree with Jackson, that if recoverability of ATE premiums ceased to exists then QOWC should be allowed for personal injury claims brought under CFAs. However, the Government has reservations about extending the principle to claims funded by hourly rate premiums and those of judicial review. [25] 

Proportionality was one of the key features from Lord Woolf’s reforms of 1996 [26] and although there is no exact definition, there is some guidance in case law. Lownds v Home Office [27] states when assessing costs, the courts should consider whether the sum claimed was proportionate, and then conduct an item-by-item assessment. [28] So long as the recoverable costs are deemed necessary and have occurred reasonably, they are permitted by the courts. However, this can lead to problems because even if such costs are gained through reasonable grounds, they can be disproportionate to the value of the claim. This is part of an overarching problem of a costly system of civil litigation. Jackson’s proposal of proportionality is to give a functioning definition and states that it is necessary to consider the sums at stake, the value of any non-monetary remedies, the complexity of the case, conduct of the parties and any other wider factors of public importance. [29] 

Jackson’s recommendations are seen by the Government as “a long stop" [30] and should only be applied when other tests fail. [31] Although the test would help in controlling the cost of litigation by disallowing disproportionate costs, it would not provide consistency and uniformity. The Consultation Paper argues the definition could encourage satellite litigation due to the uncertainty as to when costs are disproportionate or not.

The Indemnity principle is another proposed area for reform. Currently the principle is that a winning party can only claim the amount required to pay their costs, and no more. The principle aims to prohibit parties claiming more than necessary to pay their lawyer and collect a windfall from litigation. Indemnity principle is defined in statute that where there is a “contentious business agreement" [32] between a client and a solicitor “a client shall not be entitled to recover from any other person…more than the amount payable by him to his solicitor in respect of those costs under the agreement." [33] Supporters of the agreement argue it’s needed to prevent the injustice of winning parties recovering a windfall, and express that it should be retained. The Indemnity principle can be seen as vital in the battle to control costs, but can also as a root cause of satellite litigation and waste of costs. In order to try to satisfy all, Jackson’s proposal is to “abrogate" [34] the principle, providing the wording of the Civil Procedure Directions Rule 44.4 is amended to give “effective control". [35] Jackson’s reasons behind this recommendation is that people are gaining large windfalls with no benefit to court users, as seen in Crane v Canons Leisure [36] Although this recommendation is seen from within the profession as a big step forward, it has been disregarded in the Consultation paper in which the Government review the Jackson’s proposals. Reminding Jackson the original amendment was to limit usage of the principle and although it has been abrogated in regard to CFAs, it was made clear primary legislation would be needed to abrogate further rules and, would need something to replace it. [37] 

The recommendations made by Jackson are vast and varied, all aiming to reduce the cost of civil litigation therefore making the system more proportionate for all. Jackson has evaluated many viewpoints and numerous factors that were seen as impeding access to civil justice, providing a series of reforms. These have been reviewed by many, not only within the legal profession but also the Government; and they have released a Consultation paper with proposals taken from the Final Report. These aim to be implemented in 2012, however the Government has not accepted several of the recommendations. These include the recommendation that the Indemnity principle be abrogated and BTE insurance. However, many of his principles do set to be introduced, in particular that success fees should no longer be recoverable from CFAs. With this and the introduction of many other recommendations by Jackson, it is clear that without the reform, the civil justice system as it stands is too costly and is disproportionate in promoting civil justice.

RESEARCH TRAIL

1. Give list full bibliographical details of all items you identified as being of potential relevance to the essay.

Legislation

Access to Justice Act 1999

Courts and Legal Services Act 1990

Solicitors Act 1974 as amended

Civil Procedure Rules as amended

Cases

Carver v BAA plc [2008] EWCA Civ 412; [2009] 1 W.L.R. 113

Lownds v Home Office [2002] EWCA Civ 365; [2002] 1 W.L.R. 2450

Crane v Canons Leisure [2007] EWCA Civ 1352; [2008] 1 W.L.R. 2549

Publications

Lord Jackson, ‘Review of Civil Litigation Costs: Final Report’ (January 2010)

Consultation Paper, ‘Proposals for Reform of Civil Litigation Funding and Costs in England and Wales’ (15 November 2010)

Lord Woolf, ‘Access to Justice: Final Report’ (July 1996)

Lord Jackson, ‘Review of Civil Litigation Costs: Preliminary Report’ (2009)

Elizabeth Thornberg, ‘Reaping what we sow: anti-litigation rhetoric, limited budgets, and declining support for civil court’ C.J.Q. 2011, 30(1), 74-92

Books

Gary Slapper and David Kelly, The English Legal System (11th edn, Routledge 2010)

Hansard

Hansard HL, vol 717 col 9 (1st February 2010)

Websites

www.judiciary.gov.uk

www.justice.gov.uk

www.parliament.gov.uk

www.bevanbrittan.com

2. For each item, outline the steps you took to uncover relevant information and the keywords you used to find the information.

Note any difficulties you faced in finding the information and the steps you took to overcome those difficulties.

Legislation

Access to Justice Act 1999

Important legislation mentioned in lecture, typed in the full name and date into the ‘Act/SI’ search box under legislation on Westlaw.

Courts and Legal Services Act 1990

Important legislation mentioned in lecture, typed in the full name and date into the ‘Act/SI’ search box under legislation on Westlaw.

Solicitors Act 1974 as amended

Important in relation to the Indemnity principle. Saw a reference to the Act in Jackson’s report, then found the statute in full on Westlaw by typing in the full name and date into the ‘Act/SI’ search box.

Civil Procedure Rules

Used search box on the internet, typed in ‘Civil Procedure Rules’ and found them in full on www.justice.gov.uk

Cases

Carver v BAA plc [2008] EWCA Civ 412; [2009] 1 W.L.R. 113

Case mentioned in text book ‘The English Legal System,’ found by typing ‘Carver v BAA plc’ into ‘Party Names under ‘Cases’ on Westlaw. Both the Case Summary and Official Transcript were available.

Lownds v Home Office [2002] EWCA Civ 365; [2002] 1 W.L.R. 2450

Case also mentioned in text book, ‘The English Legal System,’ found on Westlaw by using a Natural Language search on the homepage and typing Lownds v Home Office.

Crane v Canons Leisure [2007] EWCA Civ 1352; [2008] 1 W.L.R. 2549

Mentioned in journal ‘Reaping what we sow: anti-litigation rhetoric, limited budgets, and declining support for civil court’ found by typing ‘Crane v Canons Leisure’ into ‘Party Names’ under ‘Cases’ on Westlaw.

Publications

Lord Jackson, ‘Review of Civil Litigation Costs: Final Report’ (January 2010)

Mentioned in the essay title and found through typing ‘Jackson Civil Litigation Costs Final Report’ into internet search box.

Lord Jackson, ‘Review of Civil Litigation Costs: Preliminary Report’ (2009)

The Preliminary Report was mentioned within the Final Report, found this by using the search box on www.judiciary.gov.uk

Consultation Paper, ‘Proposals for Reform of Civil Litigation Funding for England and Wales’ (15 November 2010)

Found by searching the Consultation Documents on www.justice.gov.uk

Journals

Elizabeth Thornberg, ‘Reaping what we sow: anti-litigation rhetoric, limited budgets, and declining support for civil court’ C.J.Q. 2011, 30(1), 74-92

Found on Westlaw, typed ‘Civil Litigation Costs’ into the search box under the heading of ‘Journals’.

Books

Gary Slapper and David Kelly, ‘The English Legal System’ (11th edn. Routledge 2010)

One of the set books for the Legal Foundations module.

Hansard

Hansard HL, Lord Bach vol 717 col 9 (1st February 2010)

Used www.Parliament.uk to search Hansard as I have previously used it in essays. Clicked on ‘Hansard’ in ‘Publications and Records’ and searched for ‘Civil Litigation Costs’

Websites

www.Parliament.uk

Mentioned in lectures, searched internet for it to use Hansard.

www.justice.gov.uk

Relevant to the essay topic, used the website to search for Consultation Document.

www.judiciary.gov.uk

Found after discovering the Final Report, then used the website to search for the Preliminary Report.

3. Reflect on how useful you found each item listed at 1. according to relevance; reliability, objectivity and weight of authority.