People, know your enemy

Earlier this year, parts of the mainstream media (MSM) reported on a High Court decision concerning Ms Gina Miller’s Brexit challenge by labelling the Judges as ‘enemies of the people’.

Firstly, the ‘logic’ of that accusation goes something like this:

  • MSM: “We want our Parliament to be sovereign!”
  • Parliament: “We want the final Brexit deal to be approved by us!”
  • MSM: “Sod Parliament!”
  • High Court: “Parliament must approve the final Brexit deal”
  • MSM: “Sod our Courts; our Judges are enemies of the people!”

Secondly, a quick look at some of the changes to YOUR civil justice system that have actually taken place over recent years may shed some light on who that title might more fittingly be attributed to.

Since 2012:

  • The qualifying period for protection from unfair dismissal from employment was increased from 1 year to 2 years’ continuous employment.
  • Tribunal fees were introduced meaning workers discriminated against or unfairly dismissed or treated would have to pay fees of £1,200 or more to take their case to a tribunal. This led to a 79% drop in employment claims.
  • Health & Safety Regulations have been weakened so that a breach of the Regulations will no longer make an employer strictly liable for injuries and losses caused as a result of that breach.
  • The small claims limit for civil claims was increased from £5,000 to £10,000. This means that a successful claimant can now only recover their own legal costs if the value of their claim is more than £10,000. Therefore, if a defendant causes you £10,000 of losses and you successfully sue them, they will not be obliged to pay any of your legal costs at all.
  • Defendants no longer have to pay all of a successful claimant’s costs in injury claims.
  • Because of this, claimants in injury claims now have to pay a percentage of their compensation towards their own legal costs.
  • Child injury claims are now much harder to bring due to the cost changes which mean that there is often not enough money recovered to cover legal costs.
  • Civil Court fees have been increased by up to 600% so claimants now have to pay up front issue fees of up to £10,000 to start a claim.
  • Nearly 100 courts have been or will soon be closed.

This is just a brief list of some of the changes that have been brought in over recent years, ALL with the effect of reducing the general public’s access to the justice system.

The Ministry of Justice recently confirmed that it made a profit of more than £100 million from civil court fees last year. That is a good result for the MoJ after losing £56 million in a failed IT project of 2014. Furthermore, big businesses and defendant insurers have saved billions of pounds by not having to pay as much in legal costs to successful claimants in the employment tribunals or civil courts.

However, UNISON, have this week achieved a huge result. In R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51, the Supreme Court ruled that the tribunal fees introduced by the Government back in 2013 were unlawful and a barrier to access to justice. With immediate effect, tribunal fees have been abolished and the Government will have to repay an estimated £32 million in fees paid by claimants since 2013.

In reaching this judgment, the Supreme Court Judges were scathing of the Government’s reforms. Let’s not forget that the Government fought this case all the way and spent millions of taxpayers money trying to keep the fees in place.

The Court stated that:

“In order for the fees to be lawful, they have to be set at a level that everyone can afford, taking into account the availability of full or partial remission. The evidence now before the court, considered realistically and as a whole, leads to the conclusion that that requirement is not met. In the first place, as the Review Report concludes, “it is clear that there has been a sharp, substantial and sustained fall in the volume of case receipts as a result of the introduction of fees…The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world. Fees must therefore be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded. Where households on low to middle incomes can only afford fees by sacrificing the ordinary and reasonable expenditure required to maintain what would generally be regarded as an acceptable standard of living, the fees cannot be regarded as affordable.”

The Supreme Court has here stood up for the people and effected an immediate change in the law contrary to the will of government because the government has implemented change that restricted access to justice and impaired the rule of law.

Following this judgment, the aforementioned media reported this decision as opening the floodgates to a river of employment claims – damn right! Making a claim is enforcing a constitutional right to access the justice system and, if your claim is meritorious, it should succeed regardless of your level of income and capital – you should feel proud and privileged to live in a society where this is the case!

Introducing prohibitive fees (and possibly making any change) that has the effect of so significantly reducing access to justice cannot be in the interest of the people because we, as the people, benefit from living in a society where justice can be secured affordably by all.

Therefore, the government’s current proposals to now reduce whiplash compensation by over 75% and remove the ability for successful claimants to recover any legal costs at all in 80% of cases should surely be looked at in light of the Supreme Court’s judgment.

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