On 15th June 2015, we celebrate the 800th anniversary of Magna Carta. The website, which has been set up as part of the celebration of this great event, emphasises the importance of this innovative document, which established for the first time the accountability of the state and the rights of the common man. The above web page heralds as its title “To no one deny or delay right or justice”. A noble proclamation, and ye (well, we) can all find countless pages devoted to the Magna Carta celebrations on the web.
So, why ye (sorry, you) may ask, is there a Vote for Justice Rally on the 23rd April, less than 2 months before the 800th anniversary of arguably the most important event in English justice, ever?
The short answer is that the last two years have seen the most significant and sustained assault on justice in England and Wales for decades.
The Vote for Justice Rally is in response to the dramatic reduction of legal aid, primarily in criminal work, but also in family work. In fact, almost 60% of parents involved in family disputes have been forced to represent themselves in Court since the removal of legal aid. Some even believe that, because of the dearth of legal aid now available for domestic violence, women will die as a result of these changes.
These cuts were just a small part of the draconian legal changes imposed since 2013. The legislation that imposed the bulk of these changes was the Legal Aid, Sentencing and Punishment of Offenders Act (2012). The same act also imposed significant changes on personal injury cases.
Other than legal aid, the main changes are, a ban on solicitors buying personal injury cases, and extensive changes to the legal costs recoverable by claimants on winning their injury cases, the result of which is that injured claimants who win their cases can now no longer keep all of their compensation.
As far as the ban on payments for cases is concerned, speak to any personal injury lawyer and they will tell you that:
a) This didn’t work, and;
b) It was never going to work.
The referral agreements changed to marketing agreements, which were drafted in full compliance with the new rules, and business continued as usual. In fact, the insurers who were paying the claims started sidestepping the ban before the law even changed.
So that was a great use of resources by the MOJ.
Turning to the deductions from a claimant’s compensation, you’ve all seen those TV adverts, right, the ones where sombre lawyer types with sharp suits and Hollywood teeth assure you that they will fight the big bad insurance companies to the death on your behalf? Did you notice when the script switched from you’ll keep “100% of your compensation”, to “all of the compensation you deserve”? In case you’ve ever wondered why, that’s why.
All of these rights have been snatched away from ordinary people like you. In return you have been given the dubious benefit of Qualified One Way Costs Shifting, or QOCS.
In essence this means that if you claim and lose, you don’t have to pay your opponent’s legal costs. The person sued (usually represented by an insurer who will be paying the claim) cannot recover their legal costs if they defeat the claim, with the one exception of you (the claimant) having been “fundamentally dishonest”.
Just as with referral fees, this is not working out quite as anticipated. In view of the fact that insurers cannot now recover their costs if the claim fails, many firms are running more or less every case that comes through the door, regardless of prospects, in the hope that insurers will make early settlement offers rather than fight them.
This of course has not helped the Government in their quest to stamp out unmeritorious claims. Quite the opposite, in fact. And it is having an equally negative effect on claimant/insurer relations. What the Government wanted was for the national claims pool to be reduced and purified. What they have got is a system where a higher proportion of new enquiries than was the case before LASPO, are now presented as claims.
Well, remove the risk, and what did they think would happen?
The result is that the insurance industry has moved from DEFCON 3 to DEFCON 2, and they now see fraud everywhere. Demonstrably genuine claims which, 5 years ago would have been settled on the best terms, are now being fought tooth and nail.
Another great use of our taxes by the MOJ.
To make up for losing 25% of their damages as costs, claimants have also been given a 10% increase in damages (100, minus 25, plus 10 is….nope, maybe it’s just me), but this apparent benefit is, in practice, rarely more than a mirage. Unless a claimant takes a case all the way to trial, cases tend to settle for a negotiated global sum and it seems clear that you, the claimant, are still worse off since LASPO. So as a result of LASPO, injured claimants have suffered a significant reduction in their ability to access legal redress. Even insurers agree that the benefit of this assault on justice has been largely theirs.
But the assault on justice does not stop there.
Staying with injury claims, recoverable legal fees for road traffic accidents have been reduced by 60%. Imagine hiring an accountant and learning that a change in Government policy had reduced their fees by 60%. Granted, not everyone would be that bothered, but would you really expect them to offer the same service as they had before? And would you be that surprised when they told you that they would have to add a 25% surcharge? Inevitably the dramatically reduced fees will reduce the quality of the work done. How can they not?
In fact, they already have, and as a result of the sharp drop in remuneration, evidence of under settling of claims has emerged.
So that worked well.
For public and employers’ liability claims, fixed costs have been applied across the board up to a claim value of £25,000. The costs scales are in fact quite reasonable, but are only workable if insurers behave reasonably, and at the consultation for fixed costs, the MOJ was presented with a significant body of evidence of routine unreasonable behaviour by insurers, and ignored it.
With personal injury, it doesn’t even stop there. Claims resulting from accidents at work were made harder for claimants to prove by the Enterprise and Regulatory Reform Act (2013).
Many people do not realise, until they have an accident at work, that the employer holds all of the cards – documents, witnesses, even the equipment and location are theirs. Decades of health and safety legislation designed to neutralise the imbalance between an employee and their employer was rendered impotent by this act, meaning that employment injury claims will now be much harder to prove. Those regulations were designed to protect employees, and to force employers to take better care for their workers.
However, in this enlightened age of zero-hours contracts and fierce competition in the aftermath of the recession, it does not take a brain surgeon (although it clearly takes more than several politicians) to work out the effect that this is likely to have on employers, and on their employees.
Then there is the dramatic increase in both tribunal fees and Court fees. The increase in tribunal fees has led to a 73% drop in tribunal claims, such a significant drop in fact that the Government are now considering lowering the fees.
The inescapable conclusion from this is that unfairly dismissed employees are not taking action because they cannot afford the fees (well, when you’ve just been unfairly sacked, tribunal fears are hardly your first priority).
Then there is the very recent 600% rise in Court fees (about which I have already filled several column inches). Perhaps they think we have forgotten, but this increase followed the rise in Court fees a year earlier levied by the same Government!
Are we to expect another fee rise? How far does this go? Should claimants expect to have to set up monthly standing orders to the MOJ? Will we have to sign over our houses to the Government if we wish to make a claim in future? I look forward to the next announcement with great anticipation.
Throw in the Government’s determination to stifle access to judicial review, and the unmistakeable conclusion is that they are pursuing a sustained and ferocious attack on the ability of the common man to access justice. This is not just my view either. Most lawyers now believe that wealth is central to having unfettered access to legal assistance and redress.
For the remainder of us who cannot afford to pay for legal help, the only options in such cases are to find someone who can provide justice on a shoestring, or of course to DIY. Many people, unable to pay for a lawyer to help them, are doing it themselves, and are getting it wrong. Good cases are being thrown away because ordinary citizens are unrepresented, and some are even pitting themselves against trained lawyers in court.
This outcome is not especially surprising when you hear that the Ministry of Justice has admitted that “they did not have the time to research the potential impact of cuts to civil legal aid”. Their candour is welcome, although not unexpected when you look at the impact assessments from the consultations, for example the consultation into reform of the whiplash claim process and costs.
The phrases “It has not been possible to quantify the costs associated with this proposal”, and “It has not been possible to quantify the benefits associated with this proposal”, are repeated 6 times. In fact there is no evidence in the impact assessment that they have found it possible to quantify anything.
And yet despite this, they pressed on with changes which have led to solicitors’ firms closing down, claimants losing a significant proportion of their compensation, and the creation of an advice vacuum for those on low, or no, income.
That’s an impact, isn’t it?
In a nutshell, the Government’s approach seems to be that “we don’t know what the outcome will be, but we’re going to do it anyway”. Life on the edge – how exciting!
As I write this, the internet is littered with reports of the Andrew Marr interview with George Osborne, in which George Osborne, who, having presided fiscally over a very difficult five years for the NHS, has, a month before the election, just promised to find £8 billion for the NHS if the Conservatives are re-elected.
In the aftermath of a five year brutal attrition of public services, the question “where does the money come from” inevitably springs to mind. George Osborne avoided answering that question 18 times. Of course, wherever the money may or may not come from, I’m sure that, as some people have alleged, the promise has nothing to do with the letter from 100 doctors to Mr Cameron 5 days earlier.
Is this just another example of “suck it and see” politics, which seems to have characterised this Government? The embarrassing reconsideration of Employment Tribunal fees referred to above certainly seems to fit that theory, as does the miraculously impact-free impact assessment (not much of a ring to that…) for the Whiplash Consultation, and the MOJ’s comments concerning the lack of consultation, during the Civil Legal Aid consultation (or that…).
So why this extraordinary attack on justice? Is it really just because cuts needed to be made from the public purse?
There is no benefit to the public purse from reducing legal costs in personal injury work. The Government stated at the time that, as far as injury claim costs were concerned, they were seeking to reduce the burden on consumers by helping insurers to reduce car premiums. So how does that fit with making injured consumers and small businesses pay a 600% increase in court fees?
Whether there were deals or not, and what the Government may or may not have got out of them, will remain a mystery. However, the haphazard and rapid manner in which these changes have been implemented suggests a lack of understanding of the subject matter. In fact, following the withdrawal of legal aid for family matters, the courts are now so inundated with unrepresented parties (“litigants in person”) that the Government is now having to spend more time and resources on dealing with that problem.
Another plan that didn’t quite come out as intended.
Chris Grayling, the first non-lawyer Lord Chancellor ever in this country, has been repeatedly criticised for having no understanding of his role, and there has been considerable discussion over whether the position of Lord Chancellor should be held by a lawyer. Mr Grayling’s own view is that he considers being a non-lawyer an advantage, as “it enables you to take a dispassionate view”, in which you do not “favour the bar or…the solicitors’ firms”. Well you would never have guessed the last bit.
So in conclusion, one has to acknowledge the considerable irony that, in the year the Magna Carta celebrates its 800th anniversary, a year in which the legal system of this country should be hailed as having evolved into an unparalleled paragon of justice, it has in fact atrophied into a shell-shocked combat zone, in which the expenditure of far too much energy is necessary just for legal firms to survive, and many haven’t.
Injured clients no longer recover all of their compensation; impecunious parents and spouses struggling to negotiate a difficult separation, are forced to plead their own case in court; victims of domestic violence are left with no alternative other than to stay and hope things change; and criminal lawyers are forced to stage protests in a brave but probably futile final effort to save their industry from being decimated.
So much for the accountability of the state and the rights of the common man.
On the 15th of June, are the Conservatives really going to be celebrating the 800th anniversary of the signing of the Magna Carta?
Or will they be privately rejoicing having confined it to the shredder?
However, there is one final point of relevance to the Magna Carta which I have not yet addressed. This becomes immediately apparent if you refer to clause 45 which states:
My money is on the shredder.
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