Justice Without Lawyers

Justice without lawyers. How does that work then? Probably about as well as a healthcare system without home grown nurses.

It is widely considered that one of the main drivers of the enormous NHS trust deficits is Government cuts to training places. All very well in theory, but at 1 o’clock in the morning when a busy trauma department is filling up with patients and needs staff, what are they supposed to do? Turn patients away? Of course not. Their only alternative is to turn to agency staff, a much more expensive option, but often the only option. Worse still, it’s not like the government couldn’t have seen this coming.

Returning to the law, the Government have been reducing the general public’s access to legal services for going on three years now, and one of their wheezes for this year, has been virtualisation of the courts and court process. In other words, move the litigation process online, reduce the staffing bill, and close the courts.

So, having created an advice vacuum with their policies of the last 2-3 years the Government is talking about Online Dispute Resolution (ODR) as if it is a panacea to cure the very vacuum they have created, and yet it obviously cannot possibly be any such thing. What it will actually do is replace the system we have now; people using physical court buildings and staff to process and adjudicate their disputes, with a virtual place and process. It will not, and cannot, replace legal advice. To suggest otherwise, is analogous to suggesting that if you close down hospitals and take doctors out of the equation, you can replace them with a self-diagnosis and prescription website. Utter, utter, tripe.

I left partnership in a firm to set up my own practice 6 months ago, which is aimed at assisting small businesses and consumers with contractual disputes at low fixed fees, and which was prompted by another government policy, their doubling of the small claims limit 30 months ago to £10,000. The carnage I have seen, and helped people through, in the last 6 months has to be seen to be believed:

– all caused by the same mindset that has produced this announcement- The justice system therefore needs to adapt to make sure that people can still access it without lawyers by a process designed to work without lawyers (The Right Hon. The Lord Thomas Of Cwmgiedd Lord Chief Justice Of England And Wales, 25th September 2015) – an absence of lawyers. Had the small claims limit not been raised, many of those people could have afforded lawyers, because if successful, they could have recovered the money they were spending on legal fees.

In the last month, I was hired by a client less than a month before her trial, to try to help her. She was involved in an acrimonious contractual dispute with a business lender. It was only at that point that she realised that she was in trouble. She had a very good argument that the case, which was run (badly) by professional lawyers against her, was unfounded. Unfortunately, because she had only a limited understanding of the law, she was blind to a critical development in the case which destroyed entirely her chances of defending the case, only a couple of months after she started. Had she been legally trained, she would have seen it immediately. Even the judge at the final hearing told her that theoretically, she had a good argument, but that she had lost the chance to capitalise upon it. Had she hired a lawyer a year ago, when the dispute first began, she may have avoided a substantial judgement against her which was awarded a week ago.

Her position would have been no different had the court been online.

The Government’s attitude to litigation is that it is very much an optional activity”. I doubt that my client felt that she had much option when she was trying, and failing, to save her business without the help she needed, and could not afford.

And yet the government persists in pursuing policies time and again which withdraw legal help from all but those with the money to afford it. Even GPs have reported an increasing number of consultations with patients who have unresolved legal needs, which are adversely affecting their life, their mood and therefore their health.

Perhaps perversely, this all reminds me of a brilliant scene in Blackadder 4:

Blackadder – Would this brilliant plan involve us climbing over the top of the trenches and walking very slowly towards the enemy?”
Darling – How did you know that, Blackadder? It’s classified information.
Blackadder – It’s the same plan that we used last time, sir. And the seventeen times before that.
Melchett – E-e-exactly! And that’s what is so brilliant about it. It will catch them off-guard. Doing exactly what we have done eighteen times before will be the last thing they’ll expect us to do this time”.

And there is the problem. They keep repeating the same behaviour, expecting different results:

This is particularly so when the Government have already admitted that they pushed many of these changes through without any, or any effective, consultation.

Most of their reforms so far have had the cumulative effect of removing access to legal representation, advice and assistance. Taking lawyers away from people has caused this – saying that they will have to get used to it is not going to fix the problem, and is only going to make it worse.

At the start of this year, 87% of lawyers thought that legal representation was no longer a right. The LCJ appears to have just given that view his blessing!

This is the clearest confirmation yet that the Government does not WANT people to have legal representation. In fact, it mirrors their stance on Judicial Review, where restricting the scope of JR would reduce the likelihood of challenge to Government policy.

For the last six years, the Government has been behaving like a cowardly schoolyard bully, trying to ensure that the fight is unfair, and is rigged in their favour.

ODR cannot replace the need for legal representation, and neither can any “virtual” court system the Government intends to introduce. Representation, advice and legal assistance will still be needed, whatever system the Government puts online, because, just as in medicine, people need the help of experts in their field. They cannot solve complex legal problems by navigating a few decision trees online, and furthermore, regardless of the views of the LCJ, unrepresented litigants taking action against a large business (who will very likely still be legally represented), or vice versa, will still be at a disadvantage to the represented party, as in my client’s case.

As the Guardian says in their article above What the figures do not convey is the sheer human misery of being unable to get legal advice”.

In May, I wrote an article entitled “The Sick Society”, in which I made a number of predictions as to the likely path of society if this Government’s judicial policy does not change. None of those predictions have changed, but there is a growing wealth of evidence that they are already happening. They are:

• with fewer controls on employers, combined with an ever more competitive marketplace, there is likely to be a steady increase in the number of unemployed and underemployed people (zero hours contracts and those on unpaid apprenticeships and internships notwithstanding);
• an increase in the number of innocent defendants choosing to plead guilty in order to avoid punitive court fees if their case is lost;
• an uphill struggle for small businesses and injured people, who will find it increasingly harder to achieve redress against defendants with greater means;
• a long term deterioration in familial relations, due to all of the above, and also due to there being no effective method available for spouses and parents who cannot afford legal advice and assistance to resolve their issues;
• a concomitant impact on the social and emotional development of children, the nature of which can only be guessed at, but which is obviously not going to improve;
• with all of the above we are also likely to see an increase in mental health issues with a resultant increasing burden on the NHS. In fact, this has already been found to be the case, even in children.

Parliament’s own report into the impact of these changes, the “Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012” states:

“80. Witnesses observed that demand for [legal] services was going up, partly as a result of the legal aid reforms but also because of other reasons such as changes in the benefits system and immigration rules, pressure on housing and rising use of zero hours contracts.[138]”

This isn’t just my opinion. It is happening.

Now.

Justice is, and always has been, at the core of our society. So instead of saying that people will have to get used to life without lawyers, the Government should be finding a way to restore contact between the general public and the legal services they once had, but have, under the last two Governments, lost.

It is truly a sad reflection of our leadership, that all of this is happening in the year in which falls the 800th anniversary of the signing of the Magna Carta, but this fundamental affront to our proud legal heritage also highlights the clear agenda of the incumbents; that justice should no longer be defined as “Just behaviour or treatment: a concern for justice, peace, and genuine respect for people” [Oxford Online Dictionary], but as a commodity to be bought only by those with sufficient means to afford it.

Everyone else will have to DIY.

Meanwhile, I have to get back to work. My hot water boiler has packed up, and I’m sure that with a £5 toolkit and a modicum of common sense, I can replace it and have the taps running hot by tea time…

If you have enjoyed this article, please feel free to share.

Thanks for reading.

Dean

Advertisements

Accountants to be forced to work for free?

A Westminster-based think tank today released a report stating that accountants should be made to work for free.

The think tank (“Public Thingy”), has released a report, which, amongst other things, argues that the public has lost trust in their professionals, and in particular, accountants. The report states that “A variety of indices suggest declining levels of trust in the UK”….”Collapse of public trust in institutions and professionals should particularly concern us, not least because in many ways we are a service nation”.

It goes on to say that those working in the accounting profession, are far more trusted than bankers, politicians and journalists. However, these levels of trust cannot be taken for granted and neither are they necessarily indicative of clear virtue in practice”.

So, accountants score more highly than politicians, bankers and journalists, but if the stats don’t support your case, rationalisation is your best friend!

The report goes on, “the underlying problem for accounting practice is an increasing loss of purpose for the professions as a whole and a loss of vocation for individual professionals”“The accounting profession has seen an erosion of its sense of wider social purpose and vocation. Accountants are still more trusted that politicians, bankers and journalists” (in case you’d forgotten). 

The report holds the profession responsible for the erosion of access to good accounting practice for all.
The 36 page report however blatantly ignores the fact that the Government has imposed a withering hailstorm of attrition on the accounting sector in the last three years, including but not limited to:
  1. Reduction, verging on partial elimination, of all State sponsored accounting services, meaning that businesses who need State assistance with their accounting, are now faced with the choice of doing it themselves and getting it wrong, or paying money they don’t have for a service that used to be free, or subsidised;
  2. A bewildering assault on private accounting services, aimed at driving down the cost of accounting services to low level fixed fees, the results of which can only be a reduction in service levels and an increased level of professional negligence.
Given that the result of both 1. and 2. are that accountancy practices, particularly smaller ones, are less able to provide quality accounting services for the fees they can now legally charge, it is difficult to understand the conclusion of Public Thingy’s report that, having had their fees summarily suppressed by legislation, accountants are to be expected to carry out 10% of their work for free.
To draw an analogy, according to this report, politicians are still held in lower regard than accountants. As everyone knows, David Cameron stated that he believed the award of a 10% payrise to MP’s was “wrong”, which would seem to fall in line with Public Thingy’s expectations of social conscience in the professions. Of course despite denouncing the award, he didn’t manage to actually reject it, but Mr Cameron did nevertheless stand firm, and through a Downing Street source, said We’re writing a letter to Ipsa to reiterate we stand by the detailed submission we had already made to them last year saying we think this rise is wrong.”
So Mr Cameron “wrote a letter”. That’s that sorted.
All’s well, honour is satisfied, and so is the bank manager.
So, politicians have done the decent thing. What are accountants going to do to restore their tarnished image?
The fact that their image has been irrepairably damaged by Government action which has resulted in the depression of the industry’s service levels from limousine to Lada, is not the Government’s problem.
Public Thingy have the solution: get them to work for free. They should donate 10% of their time free, to fill the gap left by the Government, whose meddling has decimated the industry, and the sterling and ubiquitous service it used to provide. And that’s after having drastically reduced the level of fees they can charge for the work they do.
This all sounds like either a warped nightmare, or a very bad joke. Could the Government really wreak havoc on the accountancy sector, and could they really make accountants work for free?
Of course they couldn’t.
Of course they wouldn’t.
And they wouldn’t make plumbers work for free, or printers, or roofers, or shopkeepers.
And ResPublica (I make no apologies for the truly appalling pun), the Westminster think tank, have provided the weight Gove needs to begin moving such a proposal forward.
Why is it that this Government manifests itself as a self-styled paladin of commercial enterprise, and yet has time after time proven itself committed to throttling the life out of the legal industry, clearly secure in the belief that the law can take everything thrown at it and still continue delivering 110%?
The Law is the foundation of civilized society. As anyone who has played Jenga will know, continuation brings a certainty of collapse.
Still, at least accountants are safe.
For now.
If you have enjoyed this article, please share. Thank you.

 

 

Happy 800th Anniversary Magna Carta – where has justice gone?

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?

No.

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?

It doesn’t.

So what is the justification behind this onslaught? As far as injury claims are concerned, evidence has emerged of deals between the insurance industry and the Government.

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?

Who knows?

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:

“(45) We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.”

My money is on the shredder.

Thanks for reading. If you have enjoyed this article, please share.