The report by a JUSTICE working party, “Delivering Justice in an Age of Austerity”, published on 23 April, brought together a varied group of lawyers, including myself, under the chairmanship of the retired Court of Appeal judge Sir Stanley Burnton. The context for the project was the decline in government support for the rule of law not only by cutting legal aid but by cutting funding for the administration of the courts and restricting access to them by imposing prohibitive fees on litigants.
When I was asked to join the working party I hesitated. I feared that the premise of “austerity” would lead to compromises and the sacrifice of fundamental principle in the effort to make the best of an inadequately funded judicial system. I was disinclined to help the government to avoid the consequences of its ill-considered policies.
I soon found that other members of the working party were as much opposed to these policies as I am, as is JUSTICE itself and most other organisations concerned with the law and the common good.
But fighting the cuts is not enough. There are other barriers to fair and effective dispute resolution for the great majority of the population. It remains our responsibility as lawyers to make the system work as well it can within whatever financial constraints exist (as they always do). The challenge for the working party was to propose improvements without compromising fairness, which demands that the parties to a dispute share a level playing field and equality of relevant resources.
Where disputes occur between well equipped public authorities and corporations those criteria are usually satisfied. But without legal support a private individual with limited or no resources may be forced to forego a valid claim or defence, or at best face the disadvantage of confronting a skilled opponent as a litigant in person.
Does this mean that in every dispute an impecunious party must be provided with a legally qualified representative at public expense? There are many disputes where no difficult legal issues arise and where an adversarial contest is an unnecessary burden on all involved. Hence the development of non-adversarial methods of dispute resolution.
The number of unrepresented litigants is of course escalating. If they come into court inadequately prepared, the judge may not be able to help them. That is not the judicial function anyway.
The working party quotes an Australian judge: "there are three things that can be done in relation to self representation by litigants: one is to get them lawyers, the second is to make them lawyers and the third is to change the system.” If the first option is unattainable, the second is also unreal. The third is the one which the working party has therefore pursued.
A way forward is to adopt the inquisitorial approach of continental or civil law systems. These tend to shift the burden (and cost) of investigation and presentation of evidence away from the litigants to the judiciary and the state bureaucracy.
Several judges, including the Lord Chief Justice, have argued for greater judicial intervention when faced with increasing numbers of litigants in person.
The working party looked at a number of existing schemes to assist dispute resolution within and outside the ordinary courts and tribunals. The Financial Ombudsman Service, the Office of the Social Fund Commissioner, and the Traffic Penalty Tribunal provide useful models of schemes which lay stress on early proactive case management in which the essential facts and issues in dispute can be clarified. Caseworkers and adjudicators can do this before a judicial hearing. The hope is that the dispute will be resolved before it ever reaches a judge.
The new model proposed by the working party adopts this approach. It envisages a primary dispute resolution officer, to be called a “registrar” who will review all cases where a defence is lodged. The registrar will identify the relevant issues, the applicable law, the appropriate procedure and the evidence needed to resolve the case. A preliminary decision will be made either to
- dismiss the case
- undertake an “early neutral evaluation” (a scheme already piloted in the Social Security and Child Support Tribunal)
- undertake mediation
- refer the case to a judge on grounds of complexity of fact or law
The working party argues that such a scheme, extended to most tribunals and much of the jurisdiction of the County Court and the civil side of the High Court could improve access to justice by assisting litigants in person to level the playing field. It could also save resources by achieving earlier resolution of many cases.
Alongside the reshaping of the courts and tribunals in such a manner, the working party recognises that in most situations where there appears to be a legal problem, people need accessible and affordable information and advice as to whether and how to pursue a claim or defence. As legal aid and advice services have been curtailed, it explores how far improving technology could replace or at least supplement personal or face to face contact with an adviser. While recognising that the latter will always be needed by some, technological advances justify the case for much improved online and telephone advice and information services. The working party devoted much of its time to exploring innovations in other jurisdictions, especially in the Netherlands, British Columbia, and New South Wales.
Naturally these proposals raise many questions. Is the registrar meant to display the impartiality of a judge or lean in favour of the weaker party? The ambiguity may not matter too much if the registrar can sort out the problem to everyone’s satisfaction. There should always be a right to appeal. And the weaker party may still need legal aid, which the registrar should have power to recommend.
Is it realistic to contemplate the introduction of a whole new tier of functionaries into the system? Would they duplicate or replace district judges and Masters? What are the cost implications? And what if the more powerful party rejects settlement opportunities in favour of a full-scale trial? The registrar should be able to impose costs sanctions but would that be enough?
Is this a cost saving exercise? Resolving more disputes without expensive trials obviously saves money. Registrars will cost less than senior judges, whose time will be saved. Registrars would provide a useful corps of recruits for the regular judiciary. But new funding will need to be provided to pay for them ,and for extending online and telephone advice services. And of course legal aid must be available when needed.
Our system of justice and the rule of law have been gravely compromised. The report offers an achievable framework for maximising access to justice for the ordinary citizen. Much work is needed to convert it into a practical programme, and that is an urgent task for government. Will you rise to the challenge, Mr Gove?
This article first appeared in the New Law Journal.