Government's proposed reform of legal aid - Justice Committee Contents

Written evidence from Professor Richard Moorhead (AJ 20)


The author is Professor of Law at Cardiff Law School with a longstanding research interest in legal aid and access to justice. He has conducted numerous studies in these areas for, amongst others, predecessors of the Ministry of Justice and the Legal Services Commission (and its successor). He is a former member of the Civil Justice Council and has previously acted as Specialist Adviser to Select Committees on legal aid. Views expressed here are personal.

This submission focuses on limited areas of the Green Paper (hereafter 'the Paper') predominantly where there is research evidence which may be of particular interest to the Committee.


Part of the rationale for the Green Paper is the assumption that we are too litigious as a society and that such litigiousness is caused by legal aid. The Paper provides no evidence to support that assertion and most of the proposed cuts centre on areas of work which are not, in general, related to litigation (social welfare law in particular). Increasingly, the legal aid scheme is based around funding individuals to defend cases which are brought by the State. The two largest areas of expenditure are criminal defence and public law children cases. It is these state-sponsored cases which are largely behind the increasing cost of the legal aid scheme not "litigiousness" driven by legally aided claimants.

The Committee may benefit from a brief analysis of the factual accuracy of the claim that there is greater litigiousness in areas where legal aid does fund litigation and where the Paper proposes to make cuts.

The following data on family cases is drawn from the Ministry of Justice Website.[27] The first graph considers disposal of ancillary relief applications.[28]

The next graph looks at the disposal of domestic violence applications.

The third graph looks at private law children applications. Here the data is recorded as number of children involved in private law applications.

The final graph considers public law cases (cases brought not by "private" litigants but by decisions of local authorities - and where legal aid is not to be withdrawn).

The results (with some more detail) are summarised in the following table.
Overall Change
Dissolution of marriage - Petition filed 6%
Dissolution of marriage - Decrees nisi 7%
Dissolution of marriage - Decrees absolute -5%
Nullity of marriage - Petition filed23%
Nullity of marriage - Decrees nisi-9%
Nullity of marriage - Decrees absolute -37%
Judicial separation - Petition filed-43%
Judicial separation - Decrees granted-26%
Disposal of ancillary relief applications - Uncontested -16%
Disposal of ancillary relief applications - Initially contested, subsequently consented -11%
Disposal of ancillary relief applications - Contested -32%
Disposal of ancillary relief applications - Total -16%
Disposal of contested or initially contested ancillary relief cases - In respect of child(ren) -4%
Disposal of contested or initially contested ancillary relief cases - Not in respect of child(ren) -28%
Disposal of contested or initially contested ancillary relief cases - Total -16%
Domestic Violence applications made - Non-molestation 14%
Domestic Violence applications made - Occupation -19%
Domestic Violence applications made -Total 3%
Domestic Violence orders made - Non-molestation 15%
Domestic Violence orders made - Occupation -30%
Domestic Violence orders made -Total5%
Number of children involved in Public Law applications made in FPCs 11%
Number of children involved in Public Law applications made in county courts 11%
Number of children involved in Public Law applications made in the High Court 0%
Number of children involved in Public Law applications made in the all tiers of court 11%
Number of children involved in Private Law applications made in FPCs -17%
Number of children involved in Private Law applications made in county courts 14%
Number of children involved in Private Law applications made in the High Court 0%
Number of children involved in Private Law applications made in the all tiers of court 8%

This data does not point to a significant or consistent rise in litigiousness sponsored by legal aid. The greatest rise is in cases brought by the State not by legally aided individuals. Disposals of private children applications have increased, with a mixed picture on domestic violence applications. It is possible this increase reflects reapplications or inaccuracies in the data. In 2006 MoJ announced there were 14,000 applications (children) when the figure was closer to 11,000.[29]

It should also be emphasised that this is a very basic analysis of published data for the last three years.

This is further analysis is basic but it goes further than the Green Paper goes.[30] Part of the philosophy behind the Green Paper is that legal aid incentivises litigation and so can be 'managed out' of the system without damaging the underlying interests of justice (through increased use of mediation in particular). Similar points can be made about data from the County Court (which suggests generally declining rates of litigation) and, with the principal exception of road traffic cases, with regard to personal injury cases (which largely fall outside the scope of legal aid in any event and which the reforms mooted in the paper will ensure fall completely out of scope).

The following table shows trends in personal injury claims (using Compensation Recovery Unit data). These data have the advantage of looking across a longer period (back to the time when most personal injury cases were taken out of scope). With the exception of road traffic (motor) cases, each category drops across the ten year period including the main area still funded, in part, within legal aid - clinical negligence claims:
Clin NegEmployer MotorOther PublicTotal
2000/0110,991219,183 401,7578,20795,883 736,021
2001-029,779170,554 400,4456,548100,989 688,315
2002-037,977183,342 398,8926,704109,782 706,697
2003-047,121291,210 374,7615,69891,453 770,243
2004-057,205253,502 402,9245,00787,247 755,885
2005-067,762198,067 452,5845,10484,655 748,173
2006-078,468161,031 510,0804,82885,158 769,565
2007-088,87687,198 551,9055,29979,472 732,750
2008-099,88086,957 625,0724,27586,164 812,348
2009-1010,30878,744 674,9976,25191,025 861,325
Overall Percentage Change-6% -64%68%-24% -5%17%

In summary, the evidence does not suggest a general rise in litigiousness associated with legal aid. Importantly, the Government does not appear to have properly evidenced or analysed what it asserts is a key driver behind the reforms.


I am assuming that the Committee will be receiving significant evidence from other sources on the administration's approach to mediation. It is difficult to second guess the outcome of the Norgrove review, and the interactions between that and legal aid reforms need to be considered in the round (indeed to cut family legal aid prior to the outcome of the Norgrove review seems to put the cart rather before the horse). One matter which the Committee might like to pay attention to is that Australia has gone down a route which may be emulated by the Green Paper and the Norgrove Review. The Committee should note that the Australian shift required substantial investment (I have been told informally that the Australian authorities invested significantly to make their changes work - £250m in UK currency for a much smaller population). This may be indicative of the challenge facing this administration in seeking to make such changes with dramatically reduced resources.


Discussion surrounding the Green Paper on legal aid reform has focused, in part, on litigants in person (LiPs). An idea which has received particular emphasis is the impact of LiPs on the courts. The research evidence points towards substantial issues impacting on how the courts conduct their business both judicially and administratively. This raises important issues of principle and resources; policy and practice. I base my evidence here principally on research I conducted with Mark Sefton funded by the DCA in 2005.

Cuts in legal aid will have twin effects. Mostly, in my view, it will discourage participation in court proceedings where that participation would (usually) be in the clients' interests (and in the interests of justice). Our research looked at the profile of litigants in person in four courts. It showed that the largest group of unrepresented litigants were defendants often these be in housing and debt cases.

This suggests that withdrawal of support in debt cases and in housing cases will mean defendants will receive far less support towards participating in proceedings. Whether continuing to fund cases where a client's home is under threat is sufficient to maintain supply of housing advice is moot. The proper resolution of debt cases, and housing cases in particular, are not aided—for debtor or creditor—by the non-participation of the defendants, yet withdrawal of advice funding will make this already serious problem worse. This may increase enforcement costs and is likely to contribute to diminishing respect for court process.

Our research also found that unrepresented claimants were relatively rare. This suggests it is usually (but not always) the case that claimants will only bring cases if they can secure representation. An unknown is how the withdrawal of legal aid in family cases will reduce the number of applications in children and finance cases or whether the numbers of unrepresented litigants bringing family cases will increase. One possibility is that it will do both. Our research was unable to track historical patterns in family cases of litigants in person because the Court Service (HMCS as it now is and the then DCA did not collect relevant data). The absence of data in this field is of concern. The Ministry of Justice's capacity to comment meaningfully on the significance of litigants in person must be in doubt in the absence of such basic data in their system.

Our research did ascertain the levels of unrepresented litigants in family cases in the four courts studied. The following table is excerpted from our original report.

Table 9

Cases involving fully represented parties
Case involves unrepresented party
Inactive Partial ActiveFull Active
Adoption23.4%7.0% 6.0%64.0%
Ancillary Relief68.6% 11.8%4.0%15.0%
Children Act50.4%15.9% 12.0%21.0%
Divorce31.0%7.8% 1.0%60.0%
Injunction52.5%19.3% 8.0%20.0%

The table emphasises the extent to which it was already the case that large proportions of cases have unrepresented parties and how rare it was for them to participate fully in the case.[31]

Claimants who wish to bring proceedings unrepresented need strong motivations to overcome the fear of acting unrepresented (as well as the technical barriers associated with lacking the relevant expertise). In my view, such motivations are most likely to arise where disputes are felt by the litigants themselves to be high stakes (children disputes may be one such area) or where the litigant is desperate or has a very strong sense of injustice that needs to be corrected. If that analysis is right this may lead to two particular classes of unrepresented claimant appearing before the court: litigants operating in a dispute where the emotional dimensions are very strong (which may be expected to impact on litigant behavior and make those cases harder, and more resource intensive to manage) and litigants who are obsessive or otherwise difficult.

Our research study found that obsessive/difficult litigants were a very small minority of unrepresented litigants generally, but posed considerable problems for judges and court staff. We also know from the Court of Appeal's annual reports that they contribute to the large volume of unrepresented litigants seeking to bring cases in the Court of Appeal (adding cost into that part of the system). It is likely that this small, but key, group will increase as a result of the changes increasing court costs unpredictably but potentially significantly. The other group: desperate litigants fighting over high-stakes issues such as the future of their children may also increase costs within the courts and for other relevant organizations (such as CAFCASS).

It is worth emphasizing that many defendants or putative claimants who do not participate because of cuts to legal aid will have critical interests at stake which will have gone unprotected. At the time of our research, 40% of unrepresented litigants in ancillary relief, children act or injunction cases did not participate in their cases. The impact of mediation on this constituency is uncertain. Are they more or less likely to engage? I can only speculate. This is particularly important where one party knows that their unrepresented opponent is unlikely to issue or defend proceedings as their incentive to cooperate in mediation is lessened.

Our research showed that where a party was unrepresented their opponent tended to be represented. This is important for three reasons. One is that this inequality of arms exacerbates the litigants' in person disadvantage. The second is that it makes the ethical position of the represented opponent more difficult (they struggle to balance their duty to the client with their duty to the public interest and their duty not to take advantage of their unrepresented opponent). A third difficulty is for the judges. They typically adopt the role of passive arbiter, consistent with an adversarial justice system. They have to balance the need to appear neutral with the need to assist litigants in person in the interests of justice. Represented opponents feel aggrieved if they can see the judge, as neutral umpire, assisting their opponent. A judge cannot effectively decide a case if they do not provide some assistance to litigants who are plainly out of their depth. It is a Catch 22 which can only be overcome a potentially radical restructuring of court process and new approaches to judicial management.

Judges are not trained in dealing with these circumstances which effectively require an inquisitorial approach within an adversarial system. Our research showed judges to have a range of approaches to dealing with litigants which were developed ad hoc, with apparently varying effectiveness, and without the necessary support to make such a system function. In my view, a system which is expected to successfully engage with unrepresented litigants needs to rethink its structures, policies and approaches. Simpler procedural rules and a judiciary explicitly trained and supported in delivering justice in such cases is only part of the solution. Matters of policy and principle need addressing both in the courtroom and beyond it.

To give an example of the latter, the requirement that court staff should not "give legal advice" is:

overly inclusive (I would argue that staff could give advice on procedural matters but should not give advice on substantive matters);

dangerous (where a landlord rings up and says, "I am going round this afternoon to kick my tenants out, can I do that?" not giving some 'advice' about the likely illegality may be dangerous to both sides); and

applied with significant variation (our research saw some court staff give advice in apparent breach of the rules, whereas some refused to give even rudimentary information for fear of giving advice).

There is no indication in the Paper that the MoJ have grasped the extent of the change necessary to make a system work when cases involve litigants in person. The problems extend beyond family cases, which the Norgrove review may address.

Further evidence that litigants in person need significant support if they are to participate effectively in court proceedings is also found in the study. The ways in which unrepresented litigants participate in proceedings (if they participate at all) is different from represented litigants. They spent the bulk of their time dealing with court staff and less time dealing with judges (mainly because they are less likely to attend hearings). Both findings hint at the problems they have in engaging effectively in the critical decision-making processes. Our research also suggested that levels of activity in cases involving unrepresented litigants may have involved more court-based activity than those cases where all parties were represented. This was often because represented parties were making applications to move the case along because of the technical or other failings of the unrepresented's participation. Similarly, within cases involving unrepresented parties, participation by unrepresented litigants was generally of a lower intensity than participation by represented parties.

In spite of the fact that unrepresented litigants participated at a lower intensity in court proceedings than represented parties, they made more mistakes. The problems faced by unrepresented litigants demonstrated struggles with substantive law and procedure. There was other evidence of prejudice to their interests.

It is also true to say that there was at best only modest evidence that cases involving unrepresented litigants took longer. Whilst this might suggest litigants in person lead to cases being strung out, it is probably mainly to do with their relative passivity in proceedings. Cases with passive litigants can often be relatively quick and overall this may outweigh cases where participation by litigants in person slows down the process.

It is also important to emphasise that cases with unrepresented parties were less likely to be settled. There are two main reasons which I would offer for this: one is that some litigants in person seek vindication through a court judgment (they want their day in court not settlement). Our evidence did not suggest that this as strong an explanation as is often reported. Another reason is the barriers in the way of litigants in person settling. These are numerous but include a perception held by litigants in person that they are not allowed to settle the case once it has come to court (they do not know what is appropriate in the court building in particular) and a perceived risk that represented opponents will take advantage of them in any settlement discussions.

In summary, what the research essentially shows is not that litigants in person gum up the courts with vexatious cases and applications (though some do) but that most struggle to participate in their cases if they participate at all. Where they do participate, the evidence suggests they do so sporadically; they sometimes damage their own interests as a result; and they probably create more work for their opponents and the courts themselves. Whether the most effective way of tackling this problem is through legal aid is debatable, but what is less debatable is that, where legal aid is withdrawn, there has to be consideration to how courts adapt to successfully engage with litigants in person. As noted above this has resource and policy implications which need to be addressed and are not.


I have confined the bulk of this submission to points on which my own research has generated evidence of particular significance to the Inquiry. I make some broader points briefly, in the hope this may provoke further investigation of the relevant evidence from others:


The policy of seeking to maintain decent levels of social welfare law provision is a policy carefully established against rigorous research evidence showing that justiciable problems cluster. One legal problem can trigger another which will lead to another. A crucial point is that the research creates a prima facie case that tackling such problems early is beneficial to the exchequer.

The Legal Service Commission's Legal Services Research Centre has been the main source, along with Professor Dame Haze Genn, of this evidence and I assume that the Committee is seeking evidence from them. Justiciable problems lead to expenditure in housing, benefits, health and criminal justice budgets in particular. An education law practitioner made this point to me recently: ensuring that a child gets appropriate special educational needs provision is likely to have a significant impact on the likelihood of that child staying out of prison in later life.

The LSRC's research was used as the basis of an estimate of the cost of (then) unmet legal need. It suggested that unmet legal need had a cost of £13 billion over three years. I was hoping that the impact assessments that accompanied the Green Paper would also contain assessments of the impact of the cuts on other budgets and broader, quantifiable social costs. Of course, such estimates are based on assumptions and data which mean they must be treated with a degree of caution but they also form an important tool for policy makers to assess their decisions and for stakeholders to hold them to account. That the LSRC were able to produce an estimate previously is evidence that it can and should be done for this programme of changes. I would hope the Committee encourages them to do so.


The Green Paper reminds its readers of the need to make cuts and so encourages any critics of the cuts to suggest alternatives. It is very difficult to do so without significant detailed information on the underlying costs in the system and the resources then to be able to analyse that information. I also believe that there is a longer term need to look at the fundamentals of large parts of our legal system if we are to have any chance of avoiding a cycle of decline for access to justice in this country (see attached paper Legal Aid; System Failure or Broken Law first published in the New Law Journal for some ideas in outline).

What is worth noting is that the proposals generally cut elements of the system that are relatively cheap. The areas of public spending which are highest are the ones subject to least scrutiny (criminal defence, especially at the serious end of the spectrum, and public law children cases). There is a case for subjecting these areas of expenditure to the most searching scrutiny first. It is not clear that this has been done. Article 6 obligations under human rights legislation limit any government's room for maneuver but that does not mean there is not room for maneuver than is currently suggested by the proposals.

A matter which requires greater attention is the level of remuneration earned by the Bar, and the Senior Bar, in particular relative to solicitors. At only one point is this discussed in the Green Paper (a discussion of base rates, at para 7.13). It can be read as implying that barrister rates are higher than solicitors (depending on how one reads the words "to an extent"):

"Although the base rates for barristers are already significantly higher than those for solicitors, this is balanced to an extent by the fact that enhancements are not available."

It should also be noted in this context that barrister overheads are likely to be significantly lower than solicitors, further emphasizing the potential differential between solicitors and barristers.

Whether such differences are justified is not simply a matter of comparing rates but given the plans to make across the board cuts in remuneration levels account needs to be taken of the relative earnings of each sector. A start would be to examine the proportions of the legal aid budget spent on each sector of the profession and the likely reduction spending which will result from the proposed cuts. It may be that the Bar can bear more of the pain than is currently proposed. This is not however a matter of equity between the different professional groupings, but about seeking to ensure that the cuts fall on the broadest shoulders so that the strongest level of service is protected, limiting damage to the whole supplier base and ensuring the damage to the sustainability of ours system is as limited as possible.



This piece argues that those interested in access to justice have to move beyond seeing legal aid as the problem and look more fundamentally at the nature of law and legal institutions. We need to consider radical redesign of dispute resolution processes, not simply the tacking on of ADR and we should to consider radical simplification and codification of substantive law.

In the context of broader pressures on public spending, legal aid is an attractive victim for politicians making cuts. Lawyers are seen as inflating demand for, and cost of, their services and the typical legal aid client is a less sympathetic recipient of public funding than (say) an NHS patient or a needy school child. The cuts are beginning to bite with police station work and private family law cases being the first targets and other cuts are to be announced shortly if the Ministry of Justice is to make the "efficiency savings" expected of it. In the face of this, the increasingly desperate professions and legal advice sector make pleas for quality and access to justice which are likely to fall on deaf ears. Something, everybody agrees, needs to be done— but nobody can decide what that something might be.

This article seeks to shift the focus of that debate. It suggests that it may not be the legal aid system that is broken but the systems that it operates within which need attention. It suggests solutions which are radical and painful but offer some hope for the future of equal access to justice. Such change is only likely to bear significant fruit in the medium and long term but fail to plan ahead and we risk continuing a cycle of decline for legal aid and our justice system more broadly. The central premise is that we spend too much time focusing on issues of supply in thinking about the costs of legal aid and not enough focusing on issues of demand. If we spend all our energy concentrating on supply—on the cost and accessibility of legal services—we will continue to fail to address underlying systemic problems which beset our justice system.

What do I mean? Well it is a little noticed but important fact that legal aid expenditure is under control and has been for some time. Spending on both the criminal and non-criminal components of legal aid in England & Wales (E&W) had declined slightly in real terms since 2003-04 (Bowles and Perry 2009). Legal aid spending is no longer criticised on the basis that it is out of control. Whilst there is still work to be done on ensuring that supplier costs remain under control, especially at the upper end of the market, the LSC has been remarkably successful at controlling supplier costs with, of course, much pain inflicted on the providers.

The justification for legal aid costs has now shifted to comparing our system with others. In particular, it is claimed we spend more in absolute and per capita terms on legal aid than any other country in the World. Whilst one can cavil at the precision of such comparisons, there is a significant element of truth in this claim. We are more expensive but the important question to answer is: why is this so? and then, what can be done about it?

There are a raft of explanations identified in the Bowles and Perry study as to why our system is the most expensive. We have the best, most generous legal aid system. For all that it is a system that is showing increasing signs of strain, it is a system that is only matched by Scotland and to a lesser extent the Netherlands. But we also have a system that has to cope with much more demand for its services. Put simply we have more cases, particularly in crime. As a country we report more crime to the police and they interview more suspects, prosecute more accused, convict more defendants and imprison more convicts. This has a significant impact on the number of cases and the work that needs to be done on those cases. On the civil side, divorce rates are higher here impacting significantly on the number of family cases. Care cases drive such a significant part of the legal aid budget that our civil legal aid spend is substantially driven by the number of care cases and the legal resources that must be expended on them. We also have more generous eligibility and scope. For currently, probably unavoidable reasons (see below) there is less legal expenses insurance than in some other jurisdictions.

As well as having more cases, we spend more per case. This extra cost is often attributed to supplier induced demand: the idea that lawyers do more work than is strictly necessary. The evidence on this is somewhat contestable: lawyers respond to incentives - charging more than they otherwise could when incentives allow—but there is also evidence that this impacts positively on the quality of services. In any event, and crucially, supplier induced demand is only part of the story. There are a range of other factors which go some way to explaining why our system is more expensive. One, again identified by Bowles and Perry, is that we spend much less on courts than other countries. They suggest that if we take the spend on courts and legal aid together our system ceases to be the most expensive. There are other more subtle factors. There has been a small shift in the amount of crime prosecuted as serious crime which has had a dramatic impact on the Criminal Defence Service budget (Cape and Moorhead). There is the extent of work which is demanded in child care cases. And there is greater emphasis on quality in our system: the LSC has pioneered quality assurance in legal aid and this has very likely had an impact on costs per cases. There are also other structural factors, the GDP double whammy, in particular. This suggests that our legal aid budget is larger because we are (relatively speaking) a wealthy country and so feel we should spend more on our public services, but also—because the salary expectations of the general population generally (or the legal profession in particular) are higher than in other countries such services cost more to fund. Another structural issue, on the supply side, is that we have relatively low levels of salaried provision.


The last point hints at one of the common solutions offered for the legal aid crisis. It is suggested that more salaried services: public defenders and their civil equivalents should reduce costs. However, Public defenders have been tried in England and Wales. They were found to be of good quality but more expensive (Bridges et al, 2007). The NFP sector operated contracts on a salary style model in civil legal help: they provided good quality but were expensive. On that evidence salaried services do not look like an ideal vehicle for reducing costs in the short term, although that may have been because salaried services were targeted at the low cost work of high street practices where, it might be surmised, profit margins were narrowest. Salaried services which looked towards the 'higher end' work might stand more chance of making costs savings, although one would also expect vigorous critique of any such proposals from the Bar and others.

Another suggestion often made is more ADR or more compulsory ADR. I do not subscribe to the view that compulsory ADR necessarily involves a breach of anyone's human rights, but I do raise a degree of caution about the cost-benefits of ADR particularly on low or moderate cost cases. The research evidence does not tend to show clear costs savings for ADR. Every practitioner knows why this is: most cases settle anyway. For ADR to be cost effective it must reduce costs significantly on the cases that would have settled later or gone to trial over but for ADR and above the extra costs added to the cases that would have settled anyway. Too often the benefits of ADR are compared with the costs of trial: it is generally a false comparison.

A third suggestion, hinted at above, is greater reliance on Legal Expenses Insurance. As de facto, privately funded legal aid schemes, legal expenses insurance raises some interesting conflicts between profit making and public interest, but let us put those to one side. Most commentary on legal expenses insurance agrees that until our legal system is cheaper and more predictable, legal expenses insurance is unlikely to work.


With the standard solutions to our problems looking distinctly unpromising, what alternatives can be offered? It is here that I return to my original theme: the idea that we need to think more broadly about where the pressures in the system come from and what forces drive up legal costs.

The first idea, and not a novel one, is that we need to look much more closely at polluter pays principles in legal aid expenditure. The financial services sector is, as we are often and painfully reminded, central to the health of our economy but it also manages to externalise at least some of its costs. It is dependent on the court system to enforce obligations and security and, as any debt advisor can tell you, debt advice is an important safeguard against sharp practice, including the harassment of debtors who can't pay rather than won't pay. More significantly perhaps, is the expenditure on prosecuting and defending fraud. Some attribution of those expenses to root causes may ameliorate some of the pressures facing the legal aid budget

Another issue of concern is the extent to which Local and National Government are the generators of legal problems. Evidence that it is government, in all its guises, that generates legal problems and makes them more expensive to resolve is beginning to mount. Such problems appear often to simply derive from poor quality administration and could be tackled at a strategic level with sufficient foresight and resources. Here legal aid might be seen as part of the solution rather than part of the problem with legal aid cases and the costs expended on those cases being important drivers towards improving the administration of justice throughout government. There is interesting work in Nottingham suggesting that such a focus can lead to the redesign of public services in a way that reduces costs for the 'defendant' government agency and reduces the costs to the 'claimant' legal aid budget (through reduced demand and/or reduced unit costs). Greater thought on how legal aid could be used to generate systems thinking and drive such change is one of the few opportunities within the current system for generating cost reduction and improvement in client welfare.

I do not believe that such reforms will be enough in themselves. A commitment to equal access to justice (or something close to equal) requires that we consider radically the design of our main justice frameworks.

At its simplest, I would reduce my first idea to eight words: not alternative dispute resolution but changed dispute resolution. We need to

reconsider, on the basis of clear principles but also practical judgments as to what is achievable, how we would redesign the justice system to meet the challenges posed. Such a process of radical change is not easily executed, but the way the legal system is currently operating we can expect it either to fall into disuse or to be the province of the hyper-wealthy, biggish business and litigants in person only. We are, in all likelihood, more than part way to this outcome in any event. How might we reverse this trend or make it less invidious?

One approach would be to engage in a radical simplification of process. This is an idea so often stated and so little realised it suffices to emphasise that this needs looking at in a genuinely radical and open-minded fashion. To be sure, there would be trade-offs between quality of justice and simplicity but such trade-offs may be worth it if it rescues courts from increased irrelevance. Complexity does not secure the accuracy of justice it secures the denial of justice for all but the few. We should also think seriously about removing certain work from courts and challenging the assumption that a bilateral adversarial system is best for all the issues before it. Robust, well-funded Ombudsman-type services or inquisitorial adjudication may have more to offer for lower cost in certain areas.

A second idea worthy of significant attention is the idea that if you cannot remove disadvantage, perhaps consideration should be given to removing advantage. This is done in some foreign tribunals, which suggest lawyers (or other representatives) can be banned where they lead to inappropriate inequality of arms.

The third idea is the most challenging to any lawyer or judge weaned on the beauties of the common law or any politician who sees in each freshly enacted Statute a symbol of their own capacity to deliver change. That idea is to challenge the benefit, effectiveness, even justice, of having such a complex system of substantive law. We ought to, I believe, give serious consideration to radical simplification of our laws. Many of the features of common and statute law that make it such an engaging puzzle for many lawyers make it a massive barrier to access to justice. It is tempting to suggest that common law's complexity is part of its strength. It may be complex, so the argument goes, but in the hands of an expert lawyer it is predictable and adaptable to the clients needs and to changing circumstances. I do not wish to dismiss that argument out of hand but it is worth considering the opposite possibility. A intriguing piece of Australian research points in a very different direction (Wright and Ellinghaus 2005). Using simulations, they compared the application of common law and a commercial code to see which was more predictable, more accurate (in ensuring those applying the law reached the correct decisions according to the Court of Appeal), more efficient and fair (as perceived by those applying the law and a panel of non-lawyers). As one would expect, a simpler codified approach was cheaper and quicker, but it was also fairer, more predictable and more accurate. The study was small and I would expect any fair minded reader to wonder at the extent to which it would apply in other contexts but I would also expect them to wonder about the benefits that might come from having dramatically simpler law both in terms of making it more accessible, less expensive and even - potentially—fairer.

This article first appeared in the New Law Journal in March 2010.

January 2011


Bowles and Perry (2009) International comparisons of publicly funded legal services and justice systems,

Bridges, Cape, Moorhead and Sherr (2007) Evaluation of the Public Defender Service in England and Wales, The Stationery Office, London.

Cape and Moorhead (2005) Demand Induced Supply? Identifying Cost Drivers in Criminal Defence Work

M Ellinghaus and E Wright, "The common law of contracts: Are broad principles better than detailed rules? An empirical investigation" (2005) 11 Texas Wesleyan Law Review, 399-420.

December 2010

27 Back

28   These figures will exhibit some time-lag (disposals will relate to cases some of which will have commenced prior to 2008). Back

29   I am grateful to Professor Judith Masson for the points in this paragraph about the accuracy of data. Back

30   One would expect government policy to be based on a much stronger analysis of how litigation rates relate to related social trends (such as divorce rates), for instance, and for such an analysis to have informed policy. Back

31   ???????? Back

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