Written evidence from Professor Richard
Moorhead (AJ 20)
LEGAL AID
INQUIRY
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.
ARE WE
MORE LITIGIOUS?
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of local authorities - and where legal aid is not to be withdrawn).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 filed | 23%
|
| 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 -Total | 5%
|
| 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 Neg | Employer
| Motor | Other |
Public | Total |
| 2000/01 | 10,991 | 219,183
| 401,757 | 8,207 | 95,883
| 736,021 |
| 2001-02 | 9,779 | 170,554
| 400,445 | 6,548 | 100,989
| 688,315 |
| 2002-03 | 7,977 | 183,342
| 398,892 | 6,704 | 109,782
| 706,697 |
| 2003-04 | 7,121 | 291,210
| 374,761 | 5,698 | 91,453
| 770,243 |
| 2004-05 | 7,205 | 253,502
| 402,924 | 5,007 | 87,247
| 755,885 |
| 2005-06 | 7,762 | 198,067
| 452,584 | 5,104 | 84,655
| 748,173 |
| 2006-07 | 8,468 | 161,031
| 510,080 | 4,828 | 85,158
| 769,565 |
| 2007-08 | 8,876 | 87,198
| 551,905 | 5,299 | 79,472
| 732,750 |
| 2008-09 | 9,880 | 86,957
| 625,072 | 4,275 | 86,164
| 812,348 |
| 2009-10 | 10,308 | 78,744
| 674,997 | 6,251 | 91,025
| 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.
MEDIATION AS
AN ALTERNATIVE
TO LITIGIOUSNESS?
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.
LITIGANTS IN
PERSON
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
FAMILY CASES LITIGANTS IN PERSON SUMMARY
| Cases involving fully represented parties
| Case involves unrepresented party
|
| | Inactive
| Partial Active | Full Active
|
| Adoption | 23.4% | 7.0%
| 6.0% | 64.0% |
| Ancillary Relief | 68.6% |
11.8% | 4.0% | 15.0%
|
| Children Act | 50.4% | 15.9%
| 12.0% | 21.0% |
| Divorce | 31.0% | 7.8%
| 1.0% | 60.0% |
| Injunction | 52.5% | 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.
MISCELLANEOUS OTHER
POINTS
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 RISKS
INVOLVED IN
CUTTING SOCIAL
WELFARE LAW
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.
ARE THERE
ALTERNATIVES TO
CUTTING SOCIAL
WELFARE?
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.
Annex
LEGAL AID; SYSTEM FAILURE OR BROKEN LAW
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.
SOME COMMON
SOLUTIONS
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.
SYSTEMS THINKING…?
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
REFERENCES
Bowles and Perry (2009) International comparisons
of publicly funded legal services and justice systems,
http://www.justice.gov.uk/about/docs/comparison-public-fund-legal-services-justice-systems.pdf
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
http://www.lsrc.org.uk/publications/camocrim.pdf
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.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=771204
December 2010
27 http://www.justice.gov.uk/publications/courtstatisticsquarterly.htm 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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