Litigation is expensive, but access to justice remains a vital pillar of our legal system. The
The government struggling with access to justice is nothing new. Access to justice may be a vital pillar of the rule of law but it is expensive, both directly and indirectly.
The quality of the legal advice to which a disputant has access still influences the outcome of a dispute, despite how much effort has been invested into simplifying dispute processes. Ensuring equality of arms therefore remains a core component of delivering access to justice, but lawyers have a pesky insistence on being paid, and paid well.
For years, the
However, in a country where costs shifting is the norm, the government has struggled to contain its indirect costs. Take for example the government's recent announcement of a costs cap in low damages clinical negligence claims. The press release openly cites the government's rising liability for adverse costs as its motivation:
"During the past 16 years claimants' legal costs have risen four-fold for claims of up to Ł25,000. The amount spent by
This has created a situation where the claimant's legal costs are disproportionate and on average double what the claimant themselves receives."
In 1995 Conditional Fee Agreements, the government's first attempt to find a replacement for legal aid, were introduced but proved disastrous in reducing its overall legal cost. The spiralling costs prompted the Jackson reforms in 2009, which removed the recoverability of success fees and After The Event (ATE) insurance premiums in most types of litigation. Lord
Since then, it has been possible to see two concurrent, though somewhat inconsistent, trains of thought developing about litigation funding. The first is that litigation funding can only be accessed by, and therefore only benefits, the rich, which means that it does nothing to promote access to justice. The second is that litigation funding promotes the wrong kind of access to justice: claims devised and promoted by litigation funders principally for their own benefit. If the majority of the Supreme Court were influenced, consciously or not, by a concern about litigation funding in reaching their decision in
We've worked in the litigation funding market for well over a decade now, and there is undoubtedly something to the first suggestion. For every potentially actionable enquiry we receive about litigation funding, we turn away many, many more where the economics of the claim could not conceivably work. Those economics mean that, to date, litigation funding has made relatively small inroads into large areas of the disputes market.
Innovation and maturation of the litigation funding market will likely lead to gradual change in this current reality. But in the meantime, The Post Office Group Litigation stood as a poster child for litigation funding, showing that, in the right circumstances, it absolutely could deliver access to justice for those otherwise struggling to secure it.
Whilst
Alongside other similarly affected sub-postmasters,
The presence of litigation funding has likely had a significant influence in the timing of the settlement. Given the scorched earth approach to the proceedings that the Post Office adopted, the claimants continuing to fight in the hopes of a larger settlement was probably not commercially sensible. They would have needed more funding from Therium, which likely would have negated the benefits of a better settlement or judgment.
But what is the solution? In arbitration, there is precedent for a claimant to receive legal cost reimbursement as a part of their recoverable costs. There is no such equivalent in litigation. If he was ever asked (which I do not believe he was), Mr
Introducing the ability for judges to award the costs of litigation funding as part of recoverable costs would, in a way, be perverse, because litigation funding is but one of a number of non-recourse ways that claimants can fund litigation. It is also, normally, the most expensive. Alternative means include Conditional Fee Agreements and ATE insurance. The courts have tried adding success fees and premiums onto those funding such arrangements recoverable as legal costs, and it was a disaster.
They say hard cases make bad law.
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Mr Ben Pilbrow
1 Exchange Crescent,
Tel: 131228 9900
Fax: 131228 1222
E-mail: paulina.barela@shepwedd.com
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