On Thursday 22 September 2016, Halsbury’s Law Exchange (HLE) hosted a panel discussion on the future of access to justice and litigants in person, specifically focusing on proposing solutions to this critical problem. In the lead up to the panel discussion, HLE produced a state of the nation paper that looks at the state of legal aid provision in the UK currently and asks the urgent question: “Can we safeguard access to justice?”
Joshua Rozenberg QC chaired the panel discussion and begun the evening by framing the scale of the challenge in the UK and by introducing the distinguished panellists:
- Sir Robin Knowles CBE, High Court Judge for England and Wales
- Ruth Daniel, Chief Executive Officer, Access to Justice Foundation
- Steve Hynes, Director, Legal Action Group
- Paul Yates, Head of London Pro Bono, Freshfields
All members present accepted the seriousness of the challenge to our society. One of the conclusions of the panel was that access to justice needs to be taken as seriously by the public as supporting our “free at the point of access” healthcare service. The focus on the evening was not to apportion blame or to continue to describe the problem, rather it was to discuss what we can do about it moving forwards.
As Sir Robin Knowles emphasised throughout the course of the evening, such is the seriousness of the challenge, we must use all avenues we have and pull all the levers available to us to help remedy the problem. Moreover, it requires a strategic approach, combining a variety of different components, to properly address the issue of access to justice. Below are ten potential actions that were discussed to improve access to justice in the UK.
10 steps to consider
- Give joint responsibility to Government and HM Courts & Tribunal Services (HMCTS)
It is not fair to leave a problem of this scale to government alone to fix. It requires a combination of the expertise, resources and experience of both the government and the people who are closely involved with the current consequences of the legal aid cuts. To that end, a way forward may be by continuing to facilitate groups such as HMCTS working party group which marries expertise and experience of judiciary with private sector strategy.
- Better assistance for litigants in person (LiPs) from court personnel
It was clear from the personal experiences shared by several audience members that the current assistance offered to LiPs is not as good as it should be. Sir Robin Knowles offered his personal experience in giving stronger guidance to LiPs facing represented parties. And while it was welcomed that judges would look to offer assistance to LiPs, it was noted that there are still more challenges on an administrative level with court personnel not being able to offer sufficient guidance and, further, how the court can support LiPs when they sit opposite another unrepresented party. It was noted that there is a judicial working group aimed at engaging LiPs and that this should continue.
- The hope and caution of technology
There was caution from the panel not to view technology as panacea. While it is a “game-changer”, it is not a complete solution. Technology is part of the answer and there is good cause for optimism for the benefits that it could facilitate, particularly if implemented well. However, the most important stage of taking the courts online, stage one where individuals evaluate their grievances, is the furthest away and the most challenging to implement. Although, it also has the greatest potential to improve access to justice.
- Increased role of problem-solving courts
Steve Hynes noted the success of problem-solving courts and marked the achievements of the Family Drug and Alcohol Court (FDAC) as evidence of their good work. It is these kinds of innovative judicial approaches that can work to facilitate access to justice and save the government costs further down the line.
- Early neutral advice
One of the audience members raised the importance of providing early neutral advice to people seeking access to justice. Sir Robin Knowles wholeheartedly commended the need for the provision of more early and neutral advice. Ruth Daniel strongly agreed but also advocated for better public legal education.
- Simplification of law (procedure and substantive)
Paul Yates talked about some of the more radical levers that are not being addressed. A large part of the problem of access to justice is tied up with the complexity of the system itself. Reforming and simplifying procedural and substantive law must form part of the answer.
- Disaggregation of legal advice
A wider point made by a few members and advocated by Sir Robin Knowles is the smart, more targeted use of unbundled legal advice. As opposed to the often highly expensive end-to-end legal advice, it was suggested that discrete initial advice or advice at the end of a legal matter could be a more astute use of resources which could benefit vulnerable parties who couldn’t otherwise access legal advice. It was also discussed that using McKenzie friends could be one possible solution to the existing problem.
- Costs adjustment
HLE Board member Stephen Hockman QC raised the issue of whether we need to revisit adjusting adverse costs by introducing a new conditional fee regime, as it is the single biggest deterrent for parties to bring an action. Sir Robin Knowles discussed the current close exploration of Civil Justice Council of introducing fixed price costs orders. This would give parties a precise ceiling of their costs.
- Compulsory insurance
Another approach to addressing the issue of adverse costs is to introduce a before-the-event insurance system. Mr Hockman asked whether there is a need to create a form of compulsory insurance against the risk of legal action – similar to motor insurance.
- A shift away from the adversarial system?
A number of times throughout the evening there were comparisons made to our European counterparts whose judiciaries are inquisitorial in nature. It was suggested that this loads more of the cost of justice onto the state, rather than leaving people to find and pay for representation. Sir Robin Knowles cautioned people away from abandoning our great adversarial system when the issue is not the system, but access to it.
One of the conclusions of the panel was that this challenge required joint, determined effort of all stakeholders – government, legal advice centres, judicial working groups, pro bono advice, litigants in person, the general public and many more. We need to think beyond the simple silos of courts and costs if we are going to improve access to justice and ultimately the rule of law?
By Mark Dodd