The debate on Access to Justice, and more importantly its erosion in recent years, has never been more relevant. Let’s take stock of the recent erosions.
The debate on Access to Justice, and more importantly its erosion in recent years, has never been more relevant. Let’s take stock of the recent erosions. The main changes have been the Legal Aid Sentencing & Punishment of Offenders Act (LASPO), LASPO’s main aim was to bring down spiraling costs in personal injury claims. To that end referral fees were banned and success fees were done away with. Recoverability of After-the-Event premiums from the losing side were also curtailed. Added to this the Jackson Reforms brought in fixed costs and Lord Jackson’s further report, which was published in July, now seeks to extend the fixed costs regime.
More erosion of Access to Justice came in the form of increased Court fees, and now we face perils of the proposed reforms to whiplash claims and the raising of the small claims limit for personal injury claims.
But where next for claimants seeking access to justice? Recently the courts have shone a much needed light of sanity on the situation, in the case of R (Unison) V Lord Chancellor. It seemed to me that this was despite the wishes of the Government and their needs of which seem, to me, to be more and more driven by insurers. Within the Judgement Lord Reed (with whom Lord Neuberger, Lord Mance, Lord Kerr, Lord Wilson and Lord Hughes agreed) it was commented that:
“… at the heart of the concept of the rule of law is the idea that society is governed by law.”
“… in order for the courts to perform that role people must in principle have unimpeded access to them…”
“In so far as the fees order has the practical effect of making it unaffordable for persons to exercise rights conferred on them by Parliament or of rendering the bringing of claims to enforce such rights as a futile or irrational exercise it must be regarded as rendering those rights Nugatory…”
The Government in its consultation Reforming the Soft Tissue Injury (whiplash) Process clearly sets out its position. In addition to raising the small claims limit for all injury cases, not just road traffic accidents the proposed reforms would:
- Cost the NHS at least £9million per year
- Cost tax payers at least £135million per year
- Increase insurer profits by at least £200million per year.
In other words to sum up, the number of personal injury claims are down, insurance premiums are up, insurance company profits are up … now that’s NUGATORY.
Kieran is a Partner and Head of Compliance for True Solicitors LLP in Leeds and MASS Regional Co-ordinator for Yorkshire.
Kieran is also the MASS representative for the MoJ Claims Management Regulatory Consultative Group