Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Mr Joseph Anthony Culkin

Written submission to the Public Bill Committee scrutinising the Legal Aid, Sentencing and Punishment of Offenders Bill (Suggesting amendments relating in particular to clause 25)

1. I am the father of someone who faces approximately £80,000 of costs, (following unsuccessful litigation) and enforcement would make him bankrupt. The costs are not my son’s but those of his opponents. My son has no costs, since he was unrepresented. The opposing side had the services of a local authority legal department, a firm of solicitors, and barristers. My son was granted legal aid initially, but this was withdrawn after permission to apply for judicial review was granted, for budgetary reasons only, so that he had the option of continuing unrepresented, or caving in and accepting injustice and abuse of power. Though a child, he continued unrepresented.

2. I am secondary school teacher, who was unemployed at the time when my son needed assistance. I had some legal knowledge, having completed the LLB and LPC. My son was forced to go to court in order to defend himself, and this litigation was made necessary only by the intransigence of the other side. That intransigence was fuelled by the knowledge on the part of the adversary that my son was impecunious, that he was unrepresented, and that the local authority was prepared to fund litigation, in the words of Risk Manager for Wirral MBC, "without specific regard to the economics," (in an email to the Defendant Head Teacher, disclosed during the proceedings) so that my son was faced with an ever-increasing potential bill for opponents’ costs if he lost.

3. At several stages, my son expressed his willingness to avoid legal action for a simple withdrawal of a false and unprovable allegation against him, but this was repeatedly declined by the Defendants. I am certain, having read the statements of the Defendants, in relation to assurances given by the funder, Wirral MBC, as to the Defendants’ impunity from costs, that the willingness of Wirral MBC to provide funding for the conduct of disproportionate, unreasonable and ultimately unnecessary litigation, through an extraordinarily expensive firm of solicitors - namely Weightmans LLP - was the reason why the Defendants would not come to a sensible agreement and avoid these costs altogether.

4. I acted as litigation friend, and then McKenzie Friend for my son. He failed to receive a fair hearing at many crucial stages. This was due, not only to the gross inequality of arms, and the rules relating to the role of McKenzie Friends, but to the threat of adverse costs orders against both my son, and me as his McKenzie Friend. On one occasion, I had to withdraw my services at a crucial stage, because of the threat from an opposing barrister that an adverse costs order would be made against me if I continued to assist my son. During the main trial, I was confined to the basic role of taking and passing notes and was unable to speak to the court on my son’s behalf. Whilst this afforded me with some protection against potential adverse costs, it deprived my son of any form of real help, and predictably, he lost the action. The opponents then applied for a part 52 costs order against me, based on the fact that I had acted as McKenzie Friend for my son (in spite of the very limited role I was allowed to fill), but after a subsequent hearing (in which I was able to speak) the adversary was unsuccessful in obtaining a part 52 costs order against me. By that time, my son was still an impecunious full time student.

5. This oppressive strategy, available to the rich and powerful, of incurring disproportionate costs in order to dissuade a poor individual from pursuing his legitimate claim for justice, recently resulted in my son abandoning an appeal, for which he had arguable grounds, from a decision of Lady Justice Slade in relation to costs of Judicial Review. The mounting costs (in spite of his inability to pay them) and the prospect of a 3 year payments order following his anticipated bankruptcy, broke his will to continue to seek justice. I have no doubt that those who made the unprovable allegation against him; those at Wirral MBC who funded "without specific regard to the economics," the accusers’ defence, and those at Weightmans LLP, who reaped the financial reward in the form of Council Tax payers’ funds, for counselling such a path, had intended this result all along. I write because I think such strategies should not be available to the rich and powerful, and in particular to those charged with the duty to serve the public and/or care for children.

6. To put things in context, my son was 12 years old when the events leading to the litigation began. The litigation itself related to an accusation made without evidence, and into which he had been denied a hearing. The school failed to inform me at the time and so I queried this conduct towards him. The teacher making the accusation stated in the very document containing the accusation, that he could not prove that it was true. I underline these words because they raised at the outset, 3 important points.

7. Firstly it is obvious that the reasonable thing to do in such circumstances would be to withdraw any such allegation. Had that approach been followed these costs would not have been incurred. The second thing to note is that there was (at St Mary’s Catholic College Wallasey) no internal appeal from any decision of the Head Teacher, other than one to exclude. That meant that, if the Head Teacher decided not to withdraw the unprovable allegation, the only way forward would be to seek a remedy outside of the school’s disciplinary procedures. The former Head Teacher, who had the financial backing of Wirral MBC and legal backing of Weightmans LLP would not be able to justify an allegation he had accepted was unprovable, but those advising and funding him will have known that, by virtue of his public office, he would be able to hide behind a defence of qualified privilege in any legal action in relation to the making of any untrue allegation.

8. This illustrates the extent to which Wirral MBC and Weightmans LLP, who were receiving the funds, were prepared to use their vastly superior financial resources – ie, public funds - to intimidate my son into abandoning a perfectly reasonable and essentially simple complaint, and to frighten me into withdrawing my help and support from my son, so that he would be completely denied the opportunity even to attempt to access to justice. In order to help my son, I had effectively to risk bankruptcy and the loss of the family home.

9. In simple terms, Wirral MBC and Weightmans LLP unreasonably and unnecessarily incurred £80,000 in costs rather than withdraw an allegation against a child, which the Defendants themselves, in writing, had acknowledged was unprovable. That raises issues of proportionality, which ought to have been taken into account in assessment of costs, but as I said, my son was not represented and my own ability to assist him has been hampered by his opponent’s threat of adverse costs orders so that the Courts have not appreciated the full story behind these disproportionate costs.

10. I mentioned that my son was 12 years old when the events leading to the litigation began. Those events took place at St Anselm’s Catholic College, Birkenhead, and the events subject to litigation at St Mary’s Catholic College, Wallasey were a virtual rerun of what happened at St Anselms, except that, St Anselm’s College had thought better of it and withdrew the allegation. There is no doubt whatsoever in my mind that the situation at St Mary’s College was stage-managed in order to get even for my successful challenge to the treatment my son had been receiving at St Anselm’s College, where the Chair of Governors was a Conservative Wirral MBC Councillor. Indeed the problem at St Anselm’s College arose when I pointed out that a governor’s printed request for £5 monthly from parents towards the building of a new Sports Hall (with the promise of associated government funding) did not include the statement required by law that pupils of parents who could not contribute would not be victimised. Both St Anselm’s College, and Wirral MBC ignored my letter to them about that, so I simply did not pay the sum demanded, and my son was indeed victimized because of it. He is now 23 and has been working for just over a year, but faces bankruptcy at the hands of Wirral MBC and Weightmans LLP, after 11 years of harassment.

11. The adversary would say that my son brought these costs on himself by bringing the claims to clear his name, but that raises the question whether children (except children of the conspicuously wealthy) should be denied access to justice. Should parents be confronted with the stark choice between saving the reputation of a child and financial ruin through the threat of adverse costs orders, and, where a parent proceeds to defend their child against unreasonable and unjustifiable attacks on their reputation, should the child be pursued, in lieu of their parent, into adulthood so as to blight their working life as soon as it begins, by those with the power to dispose of public funds in this way?

12. Some think that children’s reputations do not matter so much as adults, but the reality is that school records can have a serious and lasting effect on a person’s prospects and life chances. For this reason, children should have an effective remedy against unjustifiable attacks on their reputations by those in positions of power and trust. Unfortunately, the defence of qualified privilege, together with the threat of adverse costs orders, helps to promote a culture of impunity and arrogance on the part of some (thankfully not all) Head Teachers. Many children who are unjustly permanently excluded from school have even less support than my son had, since they also come from low income families without the means to access justice by way of legal representation. Further withdrawal of legal aid means that there is an increasing need for children and their parents to be able to challenge injustice without fear of financial ruin if they are unsuccessful.

13. These experiences have led me to believe that the English Rule, whereby costs follow the event, operates against ordinary people by encouraging the rich and powerful to use costs as a weapon against them in stifling genuine complaints against autocratic abuse of power. I strongly feel that it would be in the interests of justice, and conducive to more prudent public expenditure, to abolish the English Rule, however, since the current proposals do not include abolition of the English Rule, I would be grateful if you could consider an amendment along the following lines, so that disparity in power and wealth could be taken into account by judges in such a way that an unrepresented litigant would only very rarely be at risk of adverse costs orders, and would never be so at risk against a conspicuously wealthy, publicly funded, or insured party – whether claimant or defendant.

14. For example, presently a winning litigant in person can claim, I believe, just £9.23 (there are proposals to increase this to £18) per hour costs from the losing side, and some form of equality would be achieved if adverse costs order against losing litigants in person were constrained by a similar benchmark. Better still for access to justice; this Bill could enshrine a presumption that unrepresented litigants, who are not insured or conspicuously wealthy, would be immune from adverse costs orders. This would be in accord with Lord Jackson’s proposals for qualified one way costs shifting, which unfortunately the government intends to implement only in respect of personal injury cases.

15. As an alternative, the following suggested amendment could have an important role in promoting access to justice by helping to level the playing field, as it would help to remove the costs risk operating against parties unable to obtain legal aid, which seriously hinders access to justice by exacerbating existing gross inequality of arms, and would also encourage legal representatives to keep costs down by agreeing settlements with unrepresented litigants. Through the promotion of agreement without recourse to the courts, it would have the additional benefit of reducing the burden on the courts, and I would be grateful if you could consider this and the above matters when scrutinising the Bill.

16. Suggested form of amendment to clause 25

In clause 25(1) please consider augmenting sub-paragraph (a), and (b) as shown below in bold italics:

25. Costs in civil proceedings

(1) Costs ordered against an individual in relevant civil proceedings must not

exceed the amount (if any) which it is reasonable for the individual to pay having regard to all the circumstances, including –

(a) the financial resources of all of the parties to the proceedings, and whether or not the losing individual was legally represented

(b) their conduct in connection with the dispute to which the proceedings

relate, and in particular,

I. where the losing individual was not legally represented, the difference in the costs risk between the winning and losing party and the degree to which the winning party, or their legal representative, appears to have relied upon the greater costs risk, to the losing individual, before or during the proceedings.

II. where the financial circumstances of the losing individual were conspicuously poorer than those of the winning party, the degree to which the winning party, or their legal representative, relied upon their superior financial resources, before or during the proceedings, in order to gain an advantage.

July 2011

Prepared 7th September 2011