140.Access to justice, including the constitutional right of access to the courts, is a cornerstone of the rule of law; this principle was placed beyond doubt by the Supreme Court in its judgment in the Unison case on Employment Tribunal (ET) fees. As the Supreme Court pointed out, society is governed by law, and courts exist to ensure that laws, including the common law created by the courts themselves, are applied and enforced; the courts do not merely provide a public service like any other, and people must in principle have unimpeded access to them. The Court observed that the knowledge that rights and obligations would be upheld by the courts underpins everyday economic and social relations—even if, in practice, disputes are often resolved without judicial involvement.
141.Many submissions to our inquiry argued that the Government’s proposals for increasing the small claims limit would deter meritorious PI claims of lower value and argued that this raised significant access to justice concerns; some drew attention to the Unison judgment. Witnesses pointed out that unrepresented claimants would face an uneven playing field, litigating against defendant insurers with experienced legal representatives, and struggling to overcome pre-trial barriers such as obtaining—and paying for—expert evidence to resolve liability and causation disputes. When responding to the Ministry of Justice’s 2016 consultation on these reforms, the Civil Executive Team, who provide judicial oversight of civil justice reforms, communicated their own concerns about “serious access to justice issues for those with genuine but modest personal injury claims.”
142.We share these concerns about the access to justice implications of increasing the small claims limit for PI, including the financial barriers that claimants might face. While we recognise the laudable efforts of the Ministry of Justice to develop an electronic platform supplemented by guidance and support to compensate for claimants’ anticipated lack of legal representation, we conclude that this ambitious project risks falling short of creating a claims process that guarantees “unimpeded access to the courts”, as indicated by the Supreme Court’s judgment in the Unison case. We consider this to be an important point of principle on which the Government should reflect; reform should not proceed unless the Government can explain how it will make sure that access to justice is not affected.
245 Ibid paragraph 68
Published: 17 May 2018