Promoting Access To Justice
Magna Carta 1215
39 No Free man shall be seized or imprisoned or stripped of his right or possessions, or outlawed and exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
40 To no one will we sell, to no one deny or delay right or justice.
The Rule of Law is what differentiates civilised from uncivilised societies. The source of the Rule of Law is said to be the Magna Carta. The Magna Carta 1215 enshrines the right, which is more commonly known today as, Access to Justice.
It is an essential requirement of any civilised society that it obeys and respects the Rule of Law. The Rule of Law requires adherence to natural justice, fairness and although the Rule of Law is difficult to define nearly all critics agree that it includes access to affordable dispute resolution. It has been defined by an ex Lord Chief Justice, Sir Thomas Bingham (now Baron Bingham) as;
‘Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve’
(See Chapter 8 ‘The Rule of Law’ by Tom Bingham, Baron Bingham of Cornhill Penguin Books 2011)
The removal of Civil Legal Aid and the governments hope that No Win No Fee arrangements would fill the lacunae that civil legal aid left behind has proved disappointing. Expecting to move the burden of access to justice on to lawyers has failed other than in personal injury cases where no win no fee is now the order of the day.
It is widely accepted that the biggest hurdle to affordable access to the Courts is lawyers fees not court fees. Litigants who cannot afford lawyers can act as litigants in person but this a very daunting experience indeed.
So how can the public get access to the Courts without the need to pay exorbitant lawyers fees?
There a number of ways to greatly reduce legal fees. The first is to find a lawyer who acts on a ‘No Win No Fee’ (CFA or No Win No Fee) or ‘Damaged Based Agreement.’ (DBA)
This is not always as easy as it seems. Lawyers will look for very high prospects of success and not all cases that are more likely to win than lose will necessarily be acceptable because when the lawyer is gambling on their own time they are only likely to accept the strongest of cases. The second point is that most lawyers will only accept a limited number of CFA or DBA cases because they do not get paid until the conclusion of the case which could be years and not all lawyers are able or willing to wait as long to be paid if they get paid at all.
In short Tony Blair’s government’s attempt to substitute legal aid to No Win No Fees totally failed and has left an even bigger lacunae in access to justice arguably in complete breach of the Rule of Law because the costs of litigation are prohibitive.
The other problem arising with the traditional CFA is the fact that the litigant is liable to pay their lawyers costs if they win but do not get paid and if they get paid only some of the award, the lawyers get paid first, which can often leave the litigant with nothing.
Unlike in the UK the US model shows that placing the burden on lawyers can work. In the US nearly all cases are handled on contingency fee basis and this gives litigants complete access to the civil courts where the evidence is strong enough to convince lawyers that their case is winnable.
Unbundling is a new way of providing legal services, devised by the Law Society, to make legal services more affordable for clients.
Unbundling means instead of instructing a solicitor or barrister to undertake your work from start to finish you instruct them only in relation to the most important parts of your matter undertaking the more administrative parts yourself.
By instructing direct access counsel on a piece by piece basis you can significantly reduce your legal cost. You could instruct counsel to draft your claim, draft your reply, double check your witness evidence advice on disclosure and to attend the trial. You would then conduct many of the other tasks yourself acting as a litigant in person.
Unbundling is particularly good for companies with well trained administrative staff who can undertake some of the aspects of the litigation themselves. Ask us how Unbundling can save you money without any compromise on quality.